Sidney M. Wolfe v. Department of Health and Human Services

(III-B-1), bonding mine phased reading, if a tal even under NWF’s (III (III-C-2), terracing disposal Secretary to waste by the state were —C— highwalls 3-c), of underwater process for feder- elimination permitting over the take jurisdiction support facili- state, (III-E-6), over operators would al lands within (III-E-10), authority over federal applications to the their ties to submit still have state, (III-E-11). mining Finally, permits for review land Secretary as well plans. challenge reshaping cut and and reclamation operation we find the of their 523(c) (III-D-2) was de- slopes moot. fill The dual § case of checker- signed to eliminate ordered. It is so to all extend instead lands would board had a any state that federal lands within result Such a agreement.117

cooperative by and unintended clearly incorrect

seems compelled by no means

Congress, and is legisla- language of the statute of the district judgment history. The

tive regu- Secretary’s reversed, and the court is WOLFE,

lations are reinstated. Sidney et al. M.

IV. Conclusion HEALTH AND DEPARTMENT OF court of the district judgment HUMAN SERVICES. respect to NWF's hereby affirmed following merits issues: standing and the No. 86-5017. pastureland issues prime farmland Appeals, United States Court (III-A), bonding damage sub- caused District of Columbia Circuit. (III— valley (III B—2), floors alluvial sidence — (III C-l), reclamation contemporaneous —C— Argued En Banc Dec. (III-C-3-b), 3-a), thick and thin overburden Decided Feb. (III-D-1), damage caused subsidence support processing and fa- jurisdiction over (III-D-3), valley per- floors

cilities alluvial (III-D-4), substantial

formance standards (III-D-5),

legal commitment and financial existing rights

continually-created valid

(III-E-1), incompatible with surface values damaged

mining (III-E-2), replacement of (III E—3), replacement supplies

water — of senior quirements for holders water (III-E- mining

rights (III-E-4), anticipated (III-E-7),

5), storage top temporary soil

authority grant from AOC re- variances (III-E-8), jurisdiction over

quirements (III-E-9). quality

air judgment district respect incremen-

hereby reversed with permits for one mine site. problem" arises when for two different 117. The "checkerboard provision reading non-delegability adjacent mining are under alter- NWF’s blocks of land hand, 523(c), requiring nating jurisdiction, on the other would mean that of operators mining any state, federal and state operations federal land within extend across such miner whose operation permits did not extend out- from both authori- even their boundaries to obtain if boundaries, agreements have to seek Cooperative were intended to side ties. federal permits regulatory problem by allowing regu- au- a state two different thorities, two eliminate this cooper- permits covering entered into a latory authority if that state had to issue land, agreement. eliminating the need ative blocks of federal thus Schultz, William B. with whom Alan B. brief, Morrison was on the appellees. WALD, Before Judge, Chief ROBINSON, MIKVA, EDWARDS, GINSBURG, BORK, RUTH BADER STARR, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG and SENTELLE, Judges. Circuit Opinion for by the court filed Circuit STARR, BORK in which SILBERMAN, BUCKLEY, WILLIAMS, SENTELLE, D.H. GINSBURG and Judges, join. Circuit Dissenting opinion by filed Chief Judge WALD with whom ROBINSON, III, SPOTTSWOOD W. (cid:127) MIKVA, HARRY T. EDWARDS and GINSBURG, RUTH BADER Circuit Judges, join.

Dissenting opinion filed Circuit Judge HARRY T. EDWARDS with WALD, Judge, whom Chief ROBINSON, III, SPOTTSWOOD W. MIKVA, and RUTH BADER GINSBURG, Judges, join. Circuit Dissenting .opinion filed Circuit Judge RUTH BADER GINSBURG with WALD, Judge, whom Chief ROBINSON, III, SPOTTSWOOD W. MIKVA, EDWARDS, and HARRY T. Judges, join. Circuit BORK, Judge: Circuit plaintiffs-appellees, members of the Group, Public Citizen Health Research re- quested access under the of Infor- Freedom (“FOIA”), (1982), mation Act 5 U.S.C. 552 § to records which indicate what actions have completed by Drug been the Food and Ad- (“FDA”) ministration but which await final approval by decision or Secretary (“HHS”) Health and Human Services Management Budget the Office of (“OMB”). plaintiffs’ HHS refused Spears, Deputy James M. Atty. Asst. quests, contending that Gen., Willard, with whom Richard K. exempt Asst. was under FOIA Atty. Gen., Joseph diGenova, Atty., E. which shields from disclosure those doc- Kopp, Robert Leonard Schaitman and uments routinely that would not be avail- Mollin, Dept, Justice, Alfred were on the litigation agency. able civil with the brief, appellant. 552(b)(5) (1982). govern- 5 U.S.C. by the Secre- approved first should reviewed claimed ment then OMB. tary of HHS and exempt under the granted sum- The district privilege. are excluded Members of divid- plaintiffs. A mary judgment for rule- inter-agency stages of the from the affirmed district panel of this court ed FDA, HHS, and making process. After granted review The full court court. proposal, approved regulatory OMBhave scope of proper to address order guaranteed an public are members ap- as privilege proposed comment on the opportunity to 5. We hold through plied FDA requires that APA rule. The of against disclosure privilege protects the time general specifying notice publish a requested and therefore the information rulemaking proceedings, 5 place of the and court. district reverse (1982), guarantees 553(b)(1) and U.S.C. § to comment on public opportunity I. 553(c)(1982). 5 U.S.C. proposed rule. § argu- for oral opportunity There be request FOIA filed the instant Plaintiffs required FDA is ment. Thereafter the Id. more decision-makers influence order to presented to relevant comments to consider delibera- during predecisional efficiently any adopted a incorporate in rule it and to of to locate the cause in order and tions general of its basis statement concise and delay allege unreasonable they what rule is final purpose. Id. draft regulations. This FDA of the issuance Plaintiffs, unsat- by OMB. then reviewed the re- with reflects dissatisfaction case in- statutorily guaranteed their isfied with presi- development of formal sults seek the during period put, the comment rule- executive branch oversight of dential stage inter-agency influence the ability to Ginsburg, DeMuth & White making. See rulemaking process. Rulemaking, 99 in the Agency Review House (1986). develop- Two Harv.L.Rev. essence, able to plaintiffs wish to be years have last seven ments within regulatory ac- general, identify, in which First, particular attack. this sparked by FDA and to proposed tions have been Secretary of HHS withdrew long actions initiated regulatory how know FDA to issue delegation power stopping each by spending FDA deemed regulations that FDA approval route from point along the Instead, regulations now interest. HHS, so to OMB and back to HHS must first be reviewed and con- identify decision-makers they can 5.11 C.F.R. Secretary. See 21 § FDA delays in the consideration test 1981, 17, the Presi- Second, February on began by submit- regulations. Plaintiffs 12,291 No. Order issued Executive dent 1984, request to ting July on written considering is- requires all indicating which to records HHS for access any pro- draft of a rule submit suance pending for proposals were then for draft final rule posed rule Appendix Joint by HHS OMB. view 12,- Exec. Order by OMB. review (“J.A.”) request by HHS denied this at 8. 3(c)(1) (2), & 3 C.F.R. Section 23,1984, ground August on the letter dated 601 note (1981), reprinted 5 U.S.C. exempt from sought is OMB, relevant stat- (1982).1 insofar as the Exemption 5. Id. at under FOIA utory permits, reviews rule request by let- 9. renewed their Plaintiffs policies consistency presidential they to which March ter dated by cost gain net as benefit shown at 11. response. Id. no formal received Thus, can analysis. a rule before in the dis- filed this action Plaintiffs then promulgated by FDA it must be posed or opinion, draft final rules. purposes will treat proposed rules and 1. For the identical OMB’s review of draft as By request letter FOIA which seeks the dates on April trict court on proposals, 16,1985, regulatory to which identified plaintiffs submitted April dated title, infor- matter were transmitted from request for the same a second another.3 sought access to the one and in addition mation proposed transmittal of rules dates of Although plaintiffs do not seek access to OMB, HHS, and from from HHS to FDA to specific substance April Id. at 15. On back to HHS. rules, they already general know the identi- request 19, 1985, this second HHS denied regulations ty important and other FDA 'ground as the denial of the the same projects under consideration because 25,1985, April 16. On request. first Id. at generally “these matters are known to April letter their plaintiffs appealed those with an interest the FDA.” Brief appeal was for- request. Id. at 18. addition, Appellees at 3. In May mally denied on out, publishes point the FDA a semi-annual 1985, plaintiffs their amended On June Regulatory Agenda that lists all current include their complaint in this action to projected rulemaking being considered request. second FDA, by existing regulations FDA all review, pending presently in dis- under and all actions plaintiffs’ case was that While court, completed by maintains have been the FDA disclosed that it within trict HHS Thus, (the Log”) prior months. if log “Regulations that con- six a tains, requested information among things, other all the informa- is made HHS, Regulations a from the FDA to sought by plaintiffs. The shows transmittal tion tracking proposed FDA Log by HHS as an internal it is known that the has to is used regulate particular subject, if Secretary that to monitor a no device allows shown, moving through pro- is actions the clearance transmittal known that regulatory to by cess. It lists title action has decided not recommend FDA, by regulation yet. or not to recommend it If proposed the date on which shown, HHS, and, proposal ap- if no transmittal to OMB is is was received HHS disapproved plicable, the on HHS sent it on known to have the FDA’s date which Log posal. If no to OMB. The also contains informa- a transmittal is shown but persons regulation put out for notice and com- tion about the offices and within is ment, routed, disapproved to the matter has OMB is known to have HHS which been plaintiffs regulatory proposal. argu- access At oral but have not to ment, plaintiffs’ this information.2 Plaintiffs’ access to the counsel conceded that original Regulations Log plaintiff is limited their not entitled to information was significant aspects 2. We need not determine the exact contents of the index itself would reveal process, Regulations Log has not to decide this case. of the deliberative this court order Vaughn Regulations Log hesitated to limit consideration of the It is immaterial whether the (other inspection. Hayden See v. index in camera contains records of communications than HHS, Security Agency, National 608 F.2d 1384- requested) the information from FDA to (D.C.Cir.1979) (review Vaughn OMB, index in OMBto HHS. The from HHS to from appropriate where "the itemization and Regulations camera Log term is a convenient shorthand sensitive.”), justification cert. de are themselves place label for the at HHS where the informa- nied, 2156, 64 L.Ed.2d plaintiffs 446 U.S. 100 S.Ct. requested by tion is stored. Plain- however, anticipate, that where request Regulations Log, We tiffs did not process an index does not reveal the deliberative did not know of the existence of such a indeed log circumstances, Only proceedings it should be used. in rare until before the district us, Vaughn before where a such as one court. . preliminary index reveals the results of itself is, dispensed agency decisionmaking, may 3. The information in some re it be spects, Vaughn Vaughn perceive tantamount to a index. We no "in with under Rosen, conflict,” (D.C.Cir.1973), dissenting Judge Wald cert. de herent op. Chief nied, requirement of 415 U.S. 94 S.Ct. 39 L.Ed.2d 873 with our "traditional (1974). But, us, index,” id., Vaughn normally on the narrow facts before because Vaughn very Vaughn even a index reveal whether a recom index does not concerning agency’s regulate accepted or delibera mendation to rejected. has been plaintiffs’ tive which the seek. Where FOIA Ex- court ruled that The district a recommendation that would reveal apply to this case be- emption 5 did not made.4 regulate had been this case we con- COUNSEL: We—Under argued that 4. Counsel had ask for that. cede that we did not a recommendation that quested did not reveal No, no, no. I’m not SILBERMAN: JUDGE argument is inconsistent That been made. had you asking you that. Did asked for whether Material Fact many Stipulations of law that that’s not as a matter of Stipulation concede court. the district before made Exemption 5 event that an disclosable in the an HHS fact that that "[d]isclosure states defense is raised. regulation been transmitted has proposed we recom- What it is—is COUNSEL: HHS has the fact that disclose will also fhat [subject issuing regula- matter]. a final rule for proposed mend that issuance of recommended appears agree to be deliberative ("J.A.”) Stipula- that that Appendix at 70. Joint tion.” Exemption 5. FDA to under communication 11 covers tion HHS Then it would seem "virtually every” SILBERMAN: instance JUDGE that in and states your the case under regulation to me what is left of to HHS its views FDA sends when theory issue on which taking regula- the factual initially recommend “FDA tory you had some measure of Bork and a communica- 69. Such Id. at action....” significance disagreement as to what the is also referred and HHS between FDA stipulation is. stipulations 13 and a "recommendation" plaintiffs appears said that It thus counsel Id. at 69-70. not seek had did argued Stipulation 15 Plaintiffs’ counsel not entitled to and so were it. been which states Stipulation 16 limited that to be That seems odd since we understood range OMB on wide communicates with plaintiffs Be that as precisely wanted. what Thus, be tan- subjects. would not give body may, our intra-agency memorandum. to an tamount agreeing ob- reasons for argument inadequate We think this J.A. tain that information. sought to be drawn. support the conclusion to event, argument the that the informa- request communications not all Plaintiffs did equivalent requested of a recom- is not HHS and between FDA and HHS and between mendation, to be comes far too late credible. ignore us to counsel asks Plaintiffs’ OMB. judge members of the court and all The district original request plaintiffs’ scope of limited releasing panel the re- divided quested assumed that Stipulation that disclosure 16 as evidence read disclosing result information would pre-de- Log Regulations not disclose will of had been made. that a recommendation HHS. FDA and recommendations cisional Insofar judge the conse- The district court described Log Regulations infor- contains as the thus, quences regula- of disclosure proposed subjects other than mation tions, proposed HHS scope disclosure of the that an of fact information is outside that to OMB has been transmitted request plaintiffs are not plaintiffs FOIA has recom- Log that HHS also disclose fact Insofar as to it for that reason. entitled proposed regulation. regulate particular of that mended issuance Likewise, recommendations to shows subjects, a plain- of the fact that FDA appears to concede that counsel proposal to HHS will has been transmitted to are not entitled that. tiffs likely that FDA has rec- argument also disclose the fact exchange was as fol- at oral The regula- of the ommended issuance lows: straight— get tion. this MIKVA: Let me JUDGE Department Health & Human conceding v. you're you’re not entitled of Wolfe (D.D.C.Cir.1985). Serv., F.Supp. they rec- HHS had —that go "plaintiffs regulation. noted that Later the district court [a] ommended—had acknowledge Well, that disclosure would maybe, did not ask so far as to as we COUNSEL: FDA made a recom- them to infer yes. enable for it— of a proceed with issuance for mendation to didn’t ask it? JUDGE MIKVA: You Yes, posed regulation....” Id. at 549. to in this I'm not entitled COUNSEL: panel majority that the infor noted case. "usually whether and would this case is con- mation JUDGE As MIKVA: far rulemaking proposes and whether when cerned. approved by proposals Judge returned and when Silberman few moments later A Department v. Health & and OMB.” the issue. Wolfe (D.C.Cir. Serv., Counsel, go can I Human 815 F.2d JUDGE SILBERMAN: 1987), r’hg granted, banc thought en point one-of the vacated to one that I back (D.C.Cir. 1987). on, The dissent was even you F.2d 809 judges questioned I think it was explicit. Suppose more 1534-35. was a flat letter of Mikva. there judges, both the trial and If all of these FDA to HHS or then recommendation from level, laboring regu- appellate under a crucial were recommend over to OMB. We following misapprehension, are certain that factual for reasons. lation be issued the court counsel would have informed long ago. not be disclosa- You concede that that would Exemption in the face of an 5 defense. ble hearing granted scope to determine the requested does not cause the process privi- process privilege. the deliberative fall under of the deliberative We judge reasoned that lege. The district judgment of the district court reverse underlying privi- policies none of the Exemption 5’s and hold that deliberative implicated by significantly lege would be process privilege protects against disclo- material and disclosure of the requested. sure of the information “a recom- mere fact that that the concluded agency to made one mendation has been II. “sufficiently is not information another” trigger protections ‘deliberative’ Exemption agency 5 allows an to with- Department privilege.” v. Wolfe public “inter-agency hold from the or intra- Serv., F.Supp. Health & Human memorandums letters which (D.D.C.1985). Accordingly, district party available to a other plain- granted summary judgment litigation agen- than an with the tiffs, cross-motion for denied defendant’s 552(b)(5)(1982). com- cy.” 5 U.S.C. ordered disclosure summary judgment, and discovery privilege mon at issue is the law thirty requested information within process privilege. executive or deliberative appeal, timely and on days. HHS filed Congress adopted 5 because it 17, 1986, panel of this court January recognized quality that the of administra- agency’s unopposed motion granted the decision-making seriously pending tive would be un- order stay of the district court’s oper- dermined if were forced to appeal. ate in a Mead Data Cent. Inc. v. fishbowl. government continued to appeal the On Force, Dep’t Air 566 F.2d requested is argue that (D.C.Cir.1977). legisla- As is stated protected by the common Exemption 5 is history, purpose tive panel process privilege.5 A legal encourage the “frank discussion of grant district court’s of sum- affirmed the S.Rep. policy issues.” 89th plaintiffs. mary judgment to the Wolfe Servs., (1965); H.R.Rep. Cong., 1st see also Human Sess. Department Health & (D.C.Cir.1987), (1966), 1497, va- Cong., F.2d 1529-32 2d Sess. 10 815 89th granted, 821 F.2d r’hg p. cated and en banc Cong. 1966 U.S.Code & Admin.News (D.C.Cir.1987). panel majority rec- The 809 requested information ognized that words, privilege ... In other “rest[s] pre-decisional that a recom- would reveal protecting the ‘decision- upon policy mendation had been made. Id. government agen- making processes of pre-deci- But since disclosure would ” Co., Sears, Roebuck & cies.’ NLRB v. at a level of sional recommendations broad 1504, 1516, 132, 150, 44 95 S.Ct. 421 U.S. “insufficiently deli- generality they were (1975) (quoting Tennessean L.Ed.2d 29 not fall within the berative” and thus did 657, FHA, 464 F.2d Newspapers, Inc. v. privilege. major- protection of the Id. Cir.1972)); (6th see also Mead Data 660 government’s argument ity rejected the Cent., (“Exemption five is at 256 566 F.2d privilege protects not deliber- that the process protect the deliberative intended to process materials but the deliberative ative government just deliberative and not argued at 1532. The dissent itself. Id. omitted)). However, (citation material” withholding permits 5 general poli- with the accordance case, when, information as in the instant FOIA, Exemption 5 is to construed cy of pro- harm the deliberative disclosure would with efficient narrowly The full court “as as consistent cess itself. Id. at 1535-37. argued privilege, appeal, government time on the issue of constitutional 5. For the first argument constitutionally question serious consideration. deserved raised the court, govern- privilege protects at 1538-40. Before the full based executive communica- Thus, argument. the con- ment tions between HHS and OMB. The abandoned longer Wolfe, privilege no before rejected argument. issue is 815 F.2d at stitutional dissent, although reaching this court. 1532-33. The 813, material contained “purely factual S.Rep. No. operation.” Government memoranda” which was “sev- deliberative supra, at 9. Mink, at its context” 410 U.S. erable has limit Thus, Supreme Court 836; 88, Dudman Communica- 93 S.Ct. privilege to ma process ed Force, 815 Department Air tions predecisional and are both terials which (D.C.Cir.1987); 1565, see also F.2d 73, Mink, 410 U.S. EPA v. deliberative. Justice, 617 F.2d Dep’t Ryan v. 827, 836, 35 L.Ed.2d 93 S.Ct. of facts (D.C.Cir.1980)(requiring disclosure and this Supreme Court Accordingly, the they “do not reveal the deliberative only if of documents require disclosure agency’s final decision not intertwined with explain and are which predeci are protect process”); documents accord Montrose policy-making but Bd. v. Grumman Renegotiation Train, sional. Corp. v. Chem. 184-85, 95 S.Ct. 421 U.S. Aircraft, (disclosure (D.C.Cir.1974) of factual sum- (1975); 1491, 1500-01,44 L.Ed.2d 57 Coast preparing final made maries Department Corp. v. al States Gas probing the same as opinion “would be (D.C.Cir.1980). In F.2d 854 Energy, 617 itself.”). decision-making process These case, unques the materials instant me- that this court cannot cases illustrate turns, This case tionably predecisional. In- apply fact/opinion test. chanically therefore, or not the informa on whether stead, information must examine the is deliberative—that requested light policies goals requested in give-and-take of it reflects the “whether process privi- that underlie the deliberative States, process.” Coastal the consultative lege. Sears, 866; 617 F.2d at see Moreover, Grumman, Supreme (privilege focuses on 95 S.Ct. at noted that the context process by specifically which Court reflect documents which policies are for governmental decisions were used itself which the documents mulated). to define the document.” Grum- “serve[d] man, 421 95 S.Ct. at 1493. U.S. at possible to resolve whether It is not determining step in whether Thus the first by charac is deliberative harm the deliberative disclosure would do, it, merely in terizing as in which the cess is to examine the context request for dates and volving factual materials are used. Exemption disputes can often be titles. simple factual by the test resolved is exam- Once the must be disclosed but advice material prede- ined within the context of the FDA’s Mead recommendations be withheld. approval process, clear cisional becomes Cent., 566 F.2d at 256. Indeed the

Data protected. that it must fact/opinion quick, “offers a distinction proposals have been would disclose that decision,” clear, predictable rule of and made, preliminary these recom- and that must be careful most cases. But “courts accepted rejected, mendations have been of their own seman not to become victims of review. at various levels circumstances, In some even tics.” Id. is, in in- forwarding fact of each could be characterized as material stance, equivalent of an in- expose the the functional “factual” would so deliberative process tra-agency inter-agency it must be covered memorandum of in privilege. We know no case states, regula- “We recommend that a fact/opinion used the which a court has subject matter be tion this [named] support disclosure of facts distinction to promulgated.” of a failure to The fact workings the inner of the delibera about HHS, the FDA to or from forward from process tive itself. equivalent memo- HHS to OMB is the of a states, from HHS to FDA that randum Supreme recognized this when Court disapprove your recommendation “We of fact/opinion In it distinction. particular regulation on this required that a EPA v. Mink the Court [named] or, estimating accurately, guessing more promulgated.”6 matter be subject the adverse effects on the decisional sought addition, great variety process of a of combinations timing of the deliberative would reveal information. That pieces would inevi- agency in indicate the process and it would on some occasions to un- tably lead courts at the process is the deliberative which protections. legitimate Exemption 5 dercut Indeed, informa- Thus the going forward. moment procedure such a would not result the rec- generally disclose sought will Agencies in a rule at all. would have to of the consultative outcome ommended requests wholly impressionistically, pass on stage process, of that as well at each cess impressionistic second-guess- subject to the regu- not to decision as the source hardly ing of the courts. That is a satisfac- late.7 way implementing tory or efficient requested does not That the FOIA. reasoning recom- fully reveal the previously noted that the This court has no merely memorializes it mendation but privilege process deliberative embodied protection than would strips it of more purposes Exemption 5 serves a number of memorializing panel’s tenta- sheet court’s among protection are the of subor- which “Reverse; stating I will decision tive willingness provide decision- dinates’ Cent., Data Mead write.”8 See opinions frank and recommen- makers with (“To exempt documents which prevention prema- and the dations action ... but recommended certain staff proposed policies disclosure of before ture disclosure of documents require they finally formulated or have been those recommendations ... ‘report’ what States, adopted. 617 F.2d at 866. Coastal substance.”). over is “to exalt form are” Disclosure of the information for courts to ad- impossible It be certainly policies this case would a rule of law to the effect minister very FDA’s decision to prematurely. The all information about the some but not particular regulate in a area often embod- process may disclosed without important policy judg- decisional ies a sensitive and ment, violating Exemption impor- would be- 5. Courts sometimes more sensitive concerning decisions process tant than later come enmeshed a continual Ruth B. of this case is that the information We doubt the relevance of Ginsburg’s publication, views.” Id. BNA disclose “substantive reference Legislation Regulations Report by Division any analogy judi Service’s rejected Internal Revenue 8.The district Office of Chief of Counsel First, Projects. Regulations on Status decision-making judges since sub cial HHS; Wolfe, F.Supp. case before us involves FDA and ject n. 1. to the FOIA. path nature of dispute utterly does not involve IRS. The proposition is a not in That IRS, approval regulatory between revision and to the FOIA irrelevant. Courts are not Treasury quite different from and OMB 5 takes for the same reasons FDA, HHS, Regulatory process. processes FOIA. out of the Program by analogy of the United States Government 633 why long courts looked That is have 31, 1988) (exempting (April some decision-making pro 1987-March needs of their own review). from OMB The fact that the privilege IRS rules based on the to assess claims of cesses See, harmful to its deli- decision-making. e.g., IRS does not find disclosure needs of executive 683, 708, Nixon, berative does not demonstrate that HHS United States v. wrong resisting 3090, 3107, (1974) (Presi such disclosure as to its is processes. S.Ct. 41 L.Ed.2d 1039 Second, judges are bound “confidentiality expectation in his con dent’s and the record before them. We do not correspondence” facts is "like the versations and publications have a commission to search the confidentiality judicial delibera claim of tions”); Zeiss, the Bureau of National Affairs or other materi- Stiftung Carl Carl Zeiss V.E.B. facts, 318, Jena, (D.D.C.1966) to find extra-record much less to use aff’d, als sub 326 F.R.D. specula- Clark, Zeiss, facts the basis for the extra-record as F.2d Carl Jena v. nom. V.E.B. might 952, denied, (D.C.Cir.), tion of what be true this case. 88 S.Ct. 979 334, cert. (1967); see also United 19 L.Ed.2d 361 422, 999, Morgan, Judge dissenting opinion 61 S.Ct. Wald’s mis- States v. 313 U.S. 7. Chief (mental facts, (1941) processes characterizing L.Ed. 1429 reads these administrator, may judge, not be "procedural.” Judge like those of as Chief Wald dis- examined). 778-79, senting op. very point at n. 5. But the to HHS withhold by permitting regulation. served nature of and precise extent recommendations. pre-decisional patients to use these AIDS to allow Decisions regulate health drugs, or to experimental of the district judgment reverse We mind as come to products on food claims case with instruc- remand court and deci- views general examples. The HHS. summary judgment for to enter tions regulate all to at on whether sion-maker pieces of in- crucially important are WALD, Judge, often with whom Chief recommenda- predecisional about formation Judges W. SPOTTSWOOD Circuit III, MIKVA, tions. T. ROBINSON, HARRY EDWARDS, BADER RUTH and case, subor- When, in the instant dissenting: join, GINSBURG superiors, to disclo- reporting dinates a time when one, discussion at chill sure a close could I find this case While are fluid and tentative. agency opinions dissenting my col- agree with nonetheless States, (ex- F.2d at See Coastal separately only to under- write leagues and to ensure that subordinates emption serves majority has erred my view that score provide the decisionmaker free to “will feel it has facts to which interpreting so, uninhibited recommendations law, that, with their even Exemption 5 and applied public being subject to fear of later reading, without given a narrow its must Ryan, criticism”); accord disruption ridicule major a if it is not to work at under FOIA. circuit law Moreover, force offi- would I. Re- public a time clock. punch cials disclo- majority opinion states that regular intervals quests of communications be- sure of the fact inter- plaintiffs, or other allow would rule FDA, proposed as to a HHS and OMB tween group, delay to attribute ested stating, memo rec- to a “We plaintiffs’ intimate is tantamount HHS, or OMB. Given regulation on this likely that ommend that knowledge agencies [named] of these Maj. op. promulgated.” identify subject matter be quickly learn to plaintiffs Ginsburg’s indi- dissent person at 775. As or publicize the office even cates, vastly how analogy overstates credulity It responsible. strains they deem message actually is communi- definitive a attention would that such to believe knowledge of the fact of mere cated hasty precipitous decision-mak- lead to nontransmittal. such a transmittal delay is not a fact but ing. Decisional may iden- plaintiffs or opinion; what others an FDA- majority opinion envisions by unexpected delay may be caused tify as relationship in which decision- HHS-OMB complications difficulties scientific lock-step, giving act in unadorned makers weighing competing values. from “yes” or answers to transmittals “no” has information that there below. While manifestly not meant Exemption 5 FDA to HHS public agency decision-makers from been transmittal isolate regulation may possible subject of But the about a silence voices. opinion or to proposes the FDA suggest indeed of the APA allows statutory framework something point time to do they may space within which Factions, is all it tells. See subject, particular deliberate. Sunstein Self- light It sheds Lessons Stipulation J.A. at 69. no the APA: Four Interest process; happens what later 72 Va.L.Rev. Since any of its modify or even rescind in their explicitly admitted As throughout informa- tentative decisions they seek access to the pleadings, “up time review until the tion, an invita- of HHS and OMB part to issue themselves rulemaking is just It such when a agency deliberations. notice tion to Register publica- Federal Congress sought sent avoid a fishbowl Thus, pur- Stipulation J.A. at Exemption 5. The tion.” enacted when it if no erroneously adequately majority asserts can be poses of shown, rigidified, predicta- is it sumes a and therefore from HHS to OMB transmittal disapproved that HHS has can be surmised ble deliberation that the record proposal. Maj. op. at 771. of the FDA government decisionmaking the realities of true; might it be that Obviously, this is not support. do not regulation, the the although HHS thought of it and with- FDA itself better II. may the drew it. have returned HHS or regulation to the FDA for modifications regarding But even if information the any may simply yet not taken action have proposal’s interagency date of a transmit- actual transmittal from HHS at all. Even provide signal particu- tal did a clear that a perhaps only that to OMB shows some— given up” lar had or “thumbs original drastically of the altered —version sign it, down” on this alone “thumbs would proposal approval. received HHS FDA has inevitably justify still not invocation of the may made argument The same process privilege. against majority’s the too-facile conclusion posited by majority, Unlike the case if known that a transmittal it becomes judge which a writes a memorandum OMB, from but no has been made HHS “Reverse, write,” “yes” will a mere or subsequently put out for no- regulation is proposed regulation, “no” to a answer comment, con- tice and it is reasonable to nothing initially is about whose content disapproved of the clude that OMB has title,1 known other than the matter op. regulatory proposal. Maj. at 771. OMB rarely anything disclose about the sub- simply may rejected have or any agency’s stance of recommendation or clarification or refinement. returned reasoning. judicial appeal, In deci- (Affidavit of Executive J.A. at 52 Rust) (information upheld sion which will be reversed or is a Secretary David A. show, show, purport therefore “might also that matter of record and when, being delayed by in simple an action is OMB memorandum “Reverse” discloses OMB, review, fact, part of its reviewing judge’s substantive recom- from further information HHS about specific reasoning line of mendation and matter”). Or have on the But, been rejects.2 that she the case before finally proposal approving brink us, “yes” or “no” recommendation is the FDA itself rescinded its initial when only degree to the informative decision to act. proposal many itself is known. In initial cases, generality because of the sum, requested by In posals published Regulatory FDA’s plaintiff i.e., the date and destination — Agenda policy shifts or undisclosed to other about rules transmittals interim, “yes” “no” will tell the already the FDA has revealed are something going for- reader “the under consideration—discloses neither degree anything ward. The stage nor recommended outcome” at each ongoing will be revealed will any regu- deliberations “the source of decision not situation, depend, in on the sum of Maj. op. late.” at 775. The as- each 551(1)(B). Although Agenda Regulatory reg- was discloses Since the information consideration, nothing grand jury during under FDA presented ulations guarantees "material actually proposal that when a investigation_disclosure of such a list its ... conformity made those initial grand jury secrecy expose nor would not breach published summaries of the issue. disclosing Similarly, a court record.” the fact inter-agency and date of communications suggests A recent Ninth Circuit case a more goes of what reveal neither the substance Justice, apt analogy. Standley Dep’t agencies' any agency nor ten- within (9th Cir.1987), rejected F.2d 216 the court truly "memo- tative conclusions. A substantive identifying persons claim that information who letter," record, like actual court randum or grand jury received information about a gation investi- listing privileged, who but a mere should Attorney from a United States constituted privileged and at received grand jury” exempt "records of the disclo- what time should not. Privacy sure under the Act as records of "the courts of the United States." 5 U.S.C. 778 majority go seems to further in originally But the known

what was suggesting that the mere existence of for- what, in the context of FDA’s intent and FDA-HHS-OMB communications in mal may history, the transmittal proposal’s particular protected is itself instance additionally. show process privilege. under the deliberative “inter-agen- view, exempted to be my In dangerous departure from That betokens a must disclose or letters” cy memoranda ... certainly past Exemption 5 does the substance something meaningful about exception “narrowly as not construe reasoning or agency’s preliminary of an oper- efficient Government consistent with U.S.C. tentative conclusions. Cong., S.Rep. 89th 1st ation.” case, 552(b)(5).3 depend In this (1965). Sess. regulation’s information a on how much majority’s The footnote demonstrates Thus, while a transmittal discloses. title danger amorphous claim that heading “AIDS” would general under the pro Exemption protects the “deliberative substance, reg- enough not alone disclose There, suggests cess itself.” the court Funding for AIDS entitled “Federal ulation requested information in this case that the might. in Public Schools” Education “is, respects in some tantamount to a however, Again, exemption should follow 3; Vaughn Maj. op. index.” at 771 n. see itself reveals only if the transmittal (D.C.Cir.1973), Rosen, Vaughn 484 F.2d 820 agency’s recommendation. substance of denied, 415 U.S. t. cer S.Ct. conclude, Here, shown. I this has not been 1564, 39 L.Ed.2d 873 The demonstrating that disclo- The burden Vaughn claims that a index could not likely adverse ef- be to have sure would case, required in this because it would decisionmaking agency falls on the fects on concerning very “reveal the inappropri- government. I that it is believe agency’s which the ate, overriding context of FOIA’s Vaughn index seek.” But a disclosure, today’s for policy favor very designed only identify its nature is category of in- majority to shield a whole existence of certain documents for speculation formation based on the mere privilege is claimed. There is no circumstances, that, it under some some of suggesting Exemption precedent that the might legitimately exempt; the informa- mere existence of communications between agency should be examined on a case- rea reveals so much about soning may in a by-case that it not be mentioned basis. justifying withholding.

Vaughn index its majority opinion’s Hay reliance on III. Security Agency, den v. National Ex- intimates that (D.C.Cir.1979), denied, cert. 446 U.S. protects emption 5 the “deliberative (1980), 100 S.Ct. 64 L.Ed.2d 790 Maj. op. itself.” n. danger cess 771-72 highlights disturbingly of its claim, making 774. In this be con- respect. Hay broad assertions meanings fusing analytically distinct two den, we found that itemization and agree process.” I that the of “deliberative withholding justification detailed for infor reasoning and conclusions of tentative regarding Security mation the National privileged, al- decisionmakers are Agency’s “signals intelligence operations” though, legitimate for the reasons set out above and compromise secrecy inter panel opinion, disagree ests, appropriate that the and therefore it was requested specific accept in this case the district court to in camera affi effectively public Vaughn reveals either delibera- indices in davits rather than fruits. whether the information tions or their order determine construed, limiting privilege Strictly express purpose 5 would seem its apply log merely to a divulge agency reasoning not to receipt at all indicates documents which proposals. exempts or transmittal of It conclusions. letters,” undoubtedly “memoranda IV. national exempt under was 1384-85; see at exemption. security is this case requested in information The 552(b)(1). The existence 5 U.S.C. because dis- material not deliberative Hayden, security agen- interests nothing national the substance valid about closes majority the It does however, not advance or rationales. does cy recommendations FDA, agen- “no” “yes” that suggestion apparent show clear not even opinion’s analogous many secre- situations. anything to cy response have some and HHS basis under independent is no timing Finally, of communications there in the cy interest about Hayden Exemption protecting facts 5 for court The among themselves. in- itself” unless process “deliberative that: explained itself agency’s substan- discloses formation cases, types most other chill candid may that way in a tive views compromise not does Vaughn itemization opinion over- majority The deliberations. of the contents secrecy, because disclosed, amount of states thereby dis- not are documents quested agency de- likely effect on its exaggerates content only substantive closed, and appropriate and confuses liberations disclo- exempt from allegedly memo- Exemption 5’s deliberative scope of sure. exception as well. randum original).4 (emphasis in Id. at 1385 I dissent. deliberations matter of FDA, rulemakings before EDWARDS, Circuit T. HARRY secret, is the nor are not and OMB WALD, dissenting, with whom Judge, occur; deliberations these by which process W. Judge, and SPOTTSWOOD Chief substantive Exemption protects III, RUTH ROBINSON, and MIKVA decisionmaking process. content Judges, GINSBURG, Circuit BADER ten- agencies’ disclosure Premature join: conclu- preliminary and tative rationales by the expressed the views I adhere extent (and factual materials sions See panel opinion. original predeci- these inevitably reflect they that & Human Health Department v. Wolfe invok- only ground for views)5 is the sional (D.C.Cir. Servs., 1528-34 F.2d Exemption 5. ing granted, r’hg en banc 1987), vacated that I would there (D.C.Cir.1987). hereafter conclusion majority’s F.2d 809 judgment mere Court’s disclosure the District bar affirm Exemption 5 fore agen- plaintiffs. between favor of of communications existence rulemaking proposal, formal prior to a cies GINSBURG, Circuit BADER RUTH those the fact that regardless of whether WALD, Chief Judge, whom anything us tells exist communications Judges Judge, Circuit content, inherent creates an their ROBINSON, III, W. SPOTTSWOOD requirement traditional our conflict with EDWARDS MIKVA, T. and HARRY to ex- index, prerequisite aas Vaughn dissenting: join, potential The resolution emption. Edwards, I adhere would Like all clear is not at in our circuit conflict fur- panel; original disposition of point. itself,” situation the different involve course, showing strong be made can aif 4. Of implicitly dis agency memoranda doc- of certain which factual of the existence that uments Those security, reasoning then the conclusions. affect national close exempt disclo be found the indirect inapposite because cases Hayden expect National Securi- Exemption v. views can under sure of substantive Agency, F.2d at 1385. ty and "there discourage discussion" candid ed "to perform its ability agency’s by functions," undermine court case in which majority cites no 5. The Depart Communications Dudman procedural Exemption allows the has held (D.C.Cir. Force, Air ment of inter-agency deliberative workings of the inter-agen fact of 1987), procedural whereas op. Maj. All at 774. kept See secret. cess to be & II. supra Parts cy cannot. transmittal proposi- by majority for its cited of the cases protects "the ther, I respects note some in which the consistent oper- with efficient Government ation,” opinion slips my grasp. current from opinion court’s quoting S.Rep. First, majority opinion reports the current 89th 1st Cong., Sess. 9 (1965); rather, publishes that “the appears a semi-annual the decision to me Regulatory Agenda legislature’s stray lists current all will. projected rulemaking being considered FDA_” Court’s revealing publication, Given it not ev-

ident to me “the information certainly

in this case policies

prematurely.” opinion court’s

Second, current opinion ap pears envision FDA-HHS-OMB ISLAMIC REPUBLIC OF IRAN always say world decisionmakers BROADCASTING, a/k/a, “No,” “Yes” “Approve” or “Disap or IRIB, Appellant, prove,” “Amend,” “Modify,” never “Ex * v. plain.” case, Might it not be the for ex BERNET, SOTHEBY PARKE INC. ample, that no transmittal to OMB is “[i]f shown,” see court’s “disapproved pro have the FDA’s BEHROOZIAN, N.K. et al. posal,” 771, may id. at instead have No. 87-7056. returned the to the FDA for alteration, refinement or if indeed HHS has Appeals, United States Court of moved at all. District of Columbia Circuit. “Reverse; write,” I will see opin- court’s Argued Nov. ion at seems to me a very different Decided Feb. matter from the one here at As it issue. along tracks,

moves administrative

posed regulation may change signifi- shape

cantly. Nothing in request the FOIA

face seeks the substance of a regulatory

proposal at any the first or other adminis- stage.

trative But a lower court decision adjudication has a known con-

tent; the matter is set out

document, displaying the tribunal’s rea- “Reverse; write,”

sons. I will thus con-

veys reader, concrete information to the for

she just knows what the district court or why. ruled and sum, I doubt today’s decision

construes narrowly “as * extraordinary Would it not be for administrative Regulations Projects; Counsel Status avail- always units to relate to each other so fixed able person subscription interested and definite Compare, e.g., a fashion? the re- library, publication at a describes the port published periodically by the Bureau of regulatory projects matter of Affairs, (BNA) National Inc. on “the current tracked, particular identifies name the deci- plans of the Internal Revenue Service and the responsible sionmakers for the most current Treasury (Office Department Policy) of Tax action, and notes the reason the transmittal development publication regula- and the each listed items. Relevant to the tions.” This tled publication BNA commercial is ti- case, explanation instant a common for a trans- Report Legislation Regulations Divi- mittal is "returned for revision." sion Internal Revenue Service’s Office of Chief

Case Details

Case Name: Sidney M. Wolfe v. Department of Health and Human Services

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 5, 1988

Citation: 839 F.2d 768

Docket Number: 86-5017

Court Abbreviation: D.C. Cir.