Agencies can withhold documents pursuant to Freedom of Information Act’s (FOIA) deliberative process privilege only if the documents are both predecisional and deliberative.[1]  If an agency refuses to apply a court of appeals decision outside of that Circuit, that is, if it engages in “intercircuit nonacquiescence,”[2] when is “the decision” to do so made?  In other words, at what point do the internal discussions regarding the agency’s exercise of its authority in other Circuits no longer remain pre-decisional, and thus shielded from FOIA requests?  The D.C. Circuit’s recent decision in Hall & Associates v. EPA, 2020 WL 1921534 (D.C. Cir. April 21, 2020), could transform resolution of such questions into issues of fact resolvable only by trial.  And, presumably, such trials will require testimony from agency decision-makers, an exercise of authority trial courts have long been admonished to avoid.

Iowa Leagues of Cities and EPA’s Response

In Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013), the Eighth Circuit vacated two EPA rules, its  “bypass” and “blending” rules, regulating water treatment processes at municipally owned sewer systems.  On November 19, 2013, EPA issued the following “nonacquiescence” statement:

The Eighth Circuits interpretation in Iowa League of Cities v. EPA of EPA’s regulations relating to blending and bypass is legally binding within the Eighth Circuit.  Outside 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.[3]

Trade publications reported that at an “industry” conference beginning the following day, Nancy Stoner, EPA’s Acting Assistant Administrator for Water, had asserted that Iowa League of Cities was “not binding” outside of the Eighth Circuit, and that the EPA would look “on a case-by-case [basis] at situations in particular communities” outside of the Eighth Circuit to determine whether to enforce the vacated EPA rules.  Months later, at an April 9, 2014 conference, Stoner and Mark Pollins, Director of the Water Enforcement Division in the EPA’s Office of Civil Enforcement, reportedly reiterated Stoner’s November statement.  Hall & Associates v. EPA, supra, at *1.

The FOIA Request, EPA’s Response, and the District Court’s Decision

Inquiring minds at Hall & Associate wished to know more about the EPA’s decision.[4]  Hall & Associates sought records regarding EPA’s approach to the Iowa Cities case, including: (1) Stoner’s and Polin’s talking points, presentation materials, and other materials created in preparation for their presentations, as well as (2) any records regarding discussions within EPA as to whether Stoner’s November comments had accurately been reported in the trade press.  Id., at *3.[5]   

EPA identified 10 responsive documents, all but two of which were dated between November 14 and November 18.  EPA released only one, “a November 15, 2013 email meeting invite entitled ‘Iowa League of Cities,’” in full.  EPA invoked the deliberative process and the attorney-client privileges to withhold the remaining documents in whole or in part.  Id. at *3-*4. 

In the District Court, EPA asserted that it had not made a final decision on whether to follow Iowa Cities outside the Eighth Circuit.  In particular, in its Vaughn Index EPA asserted that it “has not, to date, decided whether and to what extent to follow the Iowa League of Cities’ decision outside the Eight[h] Circuit, saving those questions for permitting or other case-specific contexts.”  Id. at *5, *8.

Hall & Associates asserted that EPA had made a decision not to acquiesce before November 19, and indeed before the four-day period in November in which the documents at issue had been composed or sent.  Plaintiff argued that the decision had been made by October 8, 2013, when EPA had allowed its time to petition for certiorari to expire.  Plaintiff also pointed to a statement by EPA’s Associate General Counsel Steven Neugeboren on November 13, 2013: “It is EPA[’s] current contention that the [Iowa League of Cities] ruling will only be binding to the [Eighth] Circuit States.”  But in the same statement Neugeboren had also explained that EPA did not “have everything figured out yet” and would “be looking for a more holistic approach to managing the utility in question.”  Id. at *5, *8.

The case boiled down to whether the documents authored between November 14 and November 18 were pre-decisional; unless they were EPA could not invoke the deliberative process privilege.  Id. at *7.

On cross-motions for summary judgment, the District Court had concluded that November 19 should be considered the date on which EPA had made its nonacquiescence decision.

The Court rejected EPA’s argument that it had never made a nonacquiescence decision.  As the Court explained, by reserving the “right to proceed ‘consistent with the Agency’s existing interpretation’ outside of the Eighth Circuit on a case-by-case basis,” the EPA had “necessarily * * * refused to commit to applying Iowa League of Cities as its policy in all jurisdictions.” That was sufficient to constituted adoption of a “nonacquiescence” policy. Id. at *5.

But the Court also rejected plaintiff’s argument.  The court reasoned that Neugeboren’s November 13 statement could “reasonably be interpreted as the mere recitation of a known fact: that Eighth Circuit decisions do not ‘bind’ the EPA outside of the Eighth Circuit.” With regard to EPA’s failure to seek certiorari, the District Judge asserted that decisions to seek certiorari and to nonacquiescence are entirely distinct. Id. at *6.

The D.C. Circuit Weighs In

A unanimous D. C. Circuit panel concluded that the District Court had erred in resolving the dispute on summary judgment because the question of when the nonacquiescence decision was made was a disputed issue of material fact. Id. at *7.  It explained that the EPA had “submitted little to no evidence speaking directly to the timing question, and no direct evidence at all that the date was November 19th.” And Hall had “identified sufficient evidence to support a reasonable inference that the EPA reached its nonacquiescence position sometime before November 19th.”  Id. at *8.

With regard to Neugeboren’s November 13, 2013 statement that the Agency would be “reviewing permits on a case-by-case basis” outside of the Eighth Circuit, but had not yet figured everything out, the panel explained that Neugeboren’s caveat could be interpreted as referring to “ironing out the details of the EPA’s implementation of its nonacquiescence decision, not its adoption.”  Id. at *8.  The panel thus drew a sharp distinction between decisions to adopt a policy and considerations regarding its implementation. 

The D.C. Circuit agreed with the District Court that the decision not to seek certiorari does not mean an agency has decided to opt for nonacquiescence.  However, it explained, a court could reasonably infer that EPA did not seek certiorari because it had decided to opt for an intercircuit nonacquiescence approach instead.  And such an inference was bolstered by an August 13, 2013 internal EPA memo outlining the potential pros and cons of seeking certiorari.  The memo listed a single “pro” for refraining from seeking certiorari, namely that the EPA would be free to “formally or informally acquiesce and thereby limit the effect of the decision to the Eighth Circuit.” Id. at *9.

Observations

This sort of issue comes up in other contexts, when, for example, agencies are preparing legal or public relations materials that will be provided when announcing a new policy or initiative.  See, e.g., Judicial Watch, Inc. v. U.S. Department of Justice, 20 F.Supp.3d 260, 272-74 (D.D.C. 2014)(accepting agency argument that “the concurrent development of a media and communications strategy and the legal analysis of the DACA program were a part of the agency’s deliberative process”).[6]  Surely, under the Hall & Associates Court’s approach such decisions are made before the moment at which they are announced, making the deliberative process privilege inapplicable to some portion of material prepared for use in making a policy or other announcement. 

So long as an agency is proceeding in good faith, the announcement should perhaps serve as the presumptive date of the decision announced.  Even such a rule would not permit an agency to withhold all material created before the presumptive decision date.  Material drafted and distributed internally before that date would still have to be “deliberative” in order to warrant protection.  And the privilege does not protect segregable factual information.

Parsing exactly when an agency or an individual administrator makes a decision would be difficult, even if there were no concerns about imposing upon administrators the burden of testifying about their decision-making processes.  And surely if potential release of records will inhibit discussion, a major rationale underlying the deliberative process privilege,[7] having the decision date turn on the intricacies of an administrator’s thought processes cannot give agency officials comfort that their contributions to internal policy discussions will remain confidential.[8]

But, in addition, courts are strongly discouraged from exploring the subjective mindset of decision-makers, particularly by means of compelled testimony.  Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 268 n.18 (1977); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971); U.S. v. Morgan, 313 U.S. 409, 422 (1941); see, Fletcher v. Peck, 10 U.S. 87, 130-131 (1810)).[9]  The Court has explained that “judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government.” Arlington Heights, 429 U.S. at 268 n.18; accord U.S. v. Morgan, 313 U.S. at 422. 

Generally such admonition are given with regard to the reasons for a decision, not with regard to when the decision is made.[10]  Nevertheless, it is difficult to fully litigate when a decision-maker made a decision without exploring how it was made, namely the decision-maker’s reasons for the decision, the decision-maker’s reservations, and the steps the decision-maker took in resolving those reservations.  This resembles the type of inquiry the Court found quite problematic in Morgan.  Id. at 422.[11]  Moreover, contrary to the Hall & Associates Court’s implication, there is no bright-line distinction between deciding on a policy and considering how the policy will be implemented.  The difficulty of implementing a policy may change the decision-makers mind on whether to adopt the policy at all, or at least lead the decision-maker to give the matter further study.[12]

And decisions with regard to issuing permits under the Clean Water Act are not so sharp-edged as the applications of regulations in other contexts. Issuance of NPDES permits appears to involve a more cooperative process between federal and state environmental officials.[13]  And state officials can impose requirements that exceed those of EPA.[14]  Thus, application of the regulations invalidated in Iowa League of Cities to municipal systems for localities outside the Eighth Circuit might well have involved a more collaborative process than the application of regulations in other administrative contexts, such as social security disability benefits adjudications.[15]  And indeed, the EPA action reviewed in Iowa League of Cities was not typical of EPA’s administration of the Clean Water Act, it was a response to an inquiry from one of Iowa’s members of the U.S. Senate, Senator Charles Grassley.  [16]

Conclusion

FOIA cases are often anomalous because disputed issues of material fact seem to be resolved without evidentiary hearings.[17]  And certainly in terms of the general approach to summary judgment in most civil litigation Hall & Associates is unremarkable.  Yet, the decision could spell trouble in terms of requiring evidentiary hearings at which decision-makers must testify.  The use of a strong, but rebuttable presumption may offer a more appropriate approach to resolving the issue of when a decision is made for purposes of applying the deliberative process privilege.

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[1] See, e.g., Judicial Watch, Inc. v. Department of Defense, 847 F.3d 735, 739 (D.C. Cir. 2017).

[2] For a discussion of non-acquiescence, see see, Charles H. Koch, Jr. & Richard Murphy, 2 ADMIN. L. & PRAC. § 5:66[2] (3d ed.)[available on westlaw]; Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679 (1989); Johnson v. U.S. R.R. Retirement Bd., 969 F.2d 1082, 1090–1093 (D.C. Cir. 1992).

[3] The Hall & Associates Court characterized the statement as follows: “the EPA issued a press statement advising the public that (i) Iowa League of Cities was legally binding within the Eighth Circuit, and (ii) outside of that circuit, the EPA would continue to apply the regulatory interpretations vacated by the Eighth Circuit’s judgment.”  Hall & Associates v. EPA, supra, at *1.

[4] Actually, Hall & Associates were not engaged in mere curiosity.  The firm sought the information in its role as counsel in a challenge to the validity of EPA’s nonacquiescence decision.  Center for Regulatory Reasonableness, v. United States Environmental Protection Agency, Dkt. No. 14-1150, Petitioner’s Third Motion to Supplement Its Appendix and to Request Consideration of Sanctions 2 (filed Aug. 12, 2016)(“Given the Agency’s litigation posturing, Petitioner has been forced to use other means, the Freedom of Information Act . . . to reveal EPA’s full decision-making record”). 

[5] Hall & Assocaites’ FOIA request sought:

1. Any EPA records which discuss whether or not Ms. Stoner’s November 2013 statement was accurately reported in the trade press;

2. Any talking points and/or other materials prepared for Ms. Stoner and/or Mr. Pollins in advance of their presentations at either of the [November 20-22, 2013 or April 12, 2014] events;

3. Any presentation materials EPA distributed as part of the aforementioned presentations;

4. Any records that either Ms. Stoner or Mr. Pollins created as part of their respective presentations; and

5. Any records that either Ms. Stoner or Mr. Pollins created in preparation for their respective presentations.

J.A. 74.

Hall subsequently clarified that the request pertained “only to documents mentioning EPA’s thoughts on how the Agency would be proceeding post-[Iowa League of Cities] decision.” J.A. 78.

[6] Accord, Watkins Law & Advocacy, PLLC v. Department of Veterans Affairs, 412 F.Supp.3d 98, 122 (D.D.C. 2019), appeal filed, Dkt No. 19-5341 (D.C. Cir. Dec. 5, 2019).  This sort of issue can also arise regarding documents prepared to assist administrators with regard to difficult legislative hearings or press conferences in which the administrator must be able to defend a decision that has been made.  See, e.g., Access Reports v. Department of Justice, 926 F.2d 1192, 1196 (D.C. Cir. 1991)(preparation for congressional testimony); Leopold v. U.S. Department of Justice, 411 F.Supp.3d 1094, 1106-07 (C.D. Cal. 2019); American Center for Law & Justice v. U.S. Department of Justice, 392 F.Supp.3d 100, 106-07 (D.D.C. 2019)(“many times courts in this Circuit have found that the privilege applies to agency deliberations about future public statements, including talking points”); Seife v. U.S. Department of State, 366 F.Supp.3d 592, 605-06 (S.D.N.Y. 2019)(draft roll out schedules).

[7] See, e.g., NLRB v. Sears, Roebuck & Co. 421 U.S. 132, 150-51 (1973); EPA v. Mink, 410 U.S. 73, 86-87 (1973); Judicial Watch, Inc. v. Department of Defense, 847 F.3d 735, 739 (D.C. Cir. 2017).

[8] National Security Archive v. C.I.A., 752 F.3d 460, 464-65 (D.C. Cir. 2014)(Kavanaugh, J.)(temporally limited privilege would undermine its effectiveness); Access Reports v. Department of Justice, 926 F.2d 1192, 1196 (D.C. Cir. 1991); cf. Branzburg v. Hayes, 408 U.S. 665, 702 & n.29  (1972)(“If newsmen’s confidential sources are as sensitive as they are claimed to be, the prospect of being unmasked whenever a judge determines the situation justifies it is hardly a satisfactory solution to the problem.”)

[9] I discussed these issues in Bernard Bell, Citizenship and the Census: State of New York v. U.S. Department of Commerce (Round One) Part IV, YALE J. ON REG.: NOTICE & COMMENT (Aug. 22, 2018), reviewing cases in which a court had ordered an administrative official to testify.

[10] Though Cheney v. District Court, 542 U.S. 367 (2004), might suggest courts should find such intrusions less justifiable when the issue is whether a transparency regime is applicable than to the question of whether an agency’s actions are invalid because they are “arbitrary and capricious.  In Cheney, plaintiff sought discovery to determine whether FACA applied to the National Energy Policy Development Group (“NEPDG”); Vice President Cheney sought a writ of mandamus to vacate the District Court’s discovery order.  The Court said:

Withholding the information in this case, however, does not hamper another branch’s ability to perform its “essential functions” in quite the same way [as withholding information in a criminal trial]. The District Court ordered discovery here, not to remedy known statutory violations, but to ascertain whether FACA’s disclosure requirements even apply to the NEPDG in the first place. Even if FACA embodies important congressional objectives, the only consequence from respondents’ inability to obtain the discovery they seek is that it would be more difficult for private complainants to vindicate Congress’ policy objectives under FACA.

[11] Admonishing the trial court for compelling the Secretary of Agriculture’s testimony at trial, where he was “questioned at length regarding the process by which he reached the conclusions of his order, including the manner and extent of his study of the record and his consultation with subordinates.”  Morgan, 313 U.S. at 422.

[12] Indeed, backward-looking documents prepared to assist an administrator in explaining or justifying a policy that has been adopted can qualify for deliberative process privilege protection under D.C. Circuit law.  See, Access Reports v. Department of Justice, 926 F.2d at 1196.  As the Court explained in Access Reports:

“Robinson’s chiefs did not ask for the memo to guide them through future dispositions of FOIA requests that might be received if the bill were passed. They sought the memo in part as ammunition for the expected fray, in part as advice on whether and when to duck. It was, as a member of the panel suggested at oral argument, somewhat like a staffer’s preparation of “talking points” for an agency chief about how to handle a potentially explosive press conference.”

[13] Southern California Alliance of Publicly Owned Treatment Works v. EPA, 853 F.3d 1076, 1082 (9^th Cir. 2017); Iowa League of Cities, 711 F.3d at 856-57. Indeed, part of what EPA appears to do is to provide advice with regard to the design of municipal sewage systems.  See here.

[14] Southern California Alliance v. EPA, 853 F.3d at 1084.

[15] The Social Security Administration frequently issues “acquiescence rulings,” indicating that it will apply a decision in the Circuit in which a decision was rendered, but not in other circuits.  Statement by Arthur J. Fried, Office of the General Counsel, Social Security Administration before the Senate Judiciary Committee Subcommittee on Administrative Oversight and the Courts (June 15, 1998).  For a list of SSA Acquiescence Rulings, see here. 

The Treasury Secretary has been granted statutory authority to refuse to acquiesce in judicial rulings governing tariff classification, 19 U.S.C. §1625(d); see, Mark K. Neville, Jr., Limiting Treasury Decisions: CBP Prefers Not to Yield, 31 J. INT’L TAX’N 42 (2020).

[16] The Iowa League of Cities believed that EPA had imposed new requirements for water treatment processes and that it was doing so without promulgating regulations. The League’s efforts to obtain review based on a set of EPA documents, consisting of letters, internal memoranda, and a Federal Register notice, was dismissed for lack of jurisdiction. At the League’s request, U.S. Senator Charles Grassley wrote to EPA seeking clarification of its policy. EPA responded in two guidance letters.  Southern California Alliance v. EPA, 853 F.3d. at 1082; Iowa League of Cities v. EPA, 711 F.3d at 854.  Only on the basis of EPA’s responses to Senator Grassley’s inquiry did the Eighth Circuit assert jurisdiction.

[17] Margaret B. Kwoka, The Freedom Of Information Act Trial, 61 AM. U. L. REV. 217, 246, 247-49, 256-57, 260, 264 (2011).  Courts rarely even permit discovery.  Id. at 246, 271.