Rockwell International Corp. v. U.S. Dept. of Justice

• Citation: 235 F.3d 598
• Decision Date: 05 January 2001
• Docket Number: No. 99-5218,99-5218
• Parties: (D.C. Cir. 2001) Rockwell International Corporation, Appellant v. U.S. Department of Justice, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 598

235 F.3d 598 (D.C. Cir. 2001)

Rockwell International Corporation, Appellant v. U.S. Department of Justice, Appellee

No. 99-5218

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2000

Decided January 5, 2001

Appeal from the United States District Court for the District of Columbia (No. 98cv00761)

John Townsend Rich argued the cause for appellant. With him on the briefs were David B. Beers and Brita Dagmar Strandberg.

Michael C. Johnson, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: Williams, Randolph and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge:

Responding to congressional criticism, the Department of Justice prepared an internal report defending its prosecution of appellant for environmental crimes allegedly committed at the Rocky Flats nuclear facility. Although the Department released the text of the report to the public, it withheld a series of supporting documents, mostly inter and intra-agency memoranda written by department lawyers. Relying on Exemption 5 of the Freedom of Information Act, which protects certain inter and intra agency memoranda from disclosure, the Justice Department rejected appellant's request to release the attachments. Appellant sued to compel disclosure, and the district court granted summary judgment for the Department. We affirm.

I

During the Cold War, the Rocky Flats nuclear weapons plant, located near Denver, Colorado, was responsible, along with other government facilities, for developing, producing, and testing America's nuclear weapons. Rocky Flats' particular task was to manufacture plutonium triggers, or "pits." U.S. Dep't of Energy, Rocky Flats Closure Project Management Plan 3 (1998).

For almost 15 years, from 1975 until 1989, appellant Rockwell International Corporation operated Rocky Flats under a contract with the Department of Energy. In the late 1980s, the Justice Department began investigating Rockwell for possible criminal violations of environmental laws in connection with its activities at Rocky Flats. The Denver U.S. Attorney conducted the investigation with oversight from "Main Justice" in Washington. In 1992, after lengthy negotiations, Rockwell pled guilty to several violations and paid an $18.5 million fine. As part of the plea, the Justice Department agreed not to prosecute Rockwell employees, and the EPA and Colorado Department of Health agreed not to seek additional penalties based on conduct known to the government at the time of the plea.

Later that year, responding to public criticism of the plea agreement, the Investigations and Oversight Subcommittee of the House Committee on Science, Space and Technology, chaired by Representative Howard Wolpe, began an investigation of the Rocky Flats prosecution. Although the Department initially refused to give the Subcommittee any materials relating to its internal deliberative processes, it eventually allowed it to examine privileged documents on the express condition that they not be made public. In response to another committee request, four attorneys involved in the prosecution testified, but on instructions from the Justice Department refused to answer questions concerning the Department's internal deliberations. The Subcommittee threatened contempt proceedings against the attorneys unless President Bush formally invoked executive privilege on their behalf. Rather than ask the President to invoke the privilege, the Department allowed the attorneys to testify in closed recorded sessions before Subcommittee staff.

Following its investigation, the Subcommittee released a 144-page report criticizing the Justice Department for its "extreme conservatism" in pursuing the Rocky Flats prosecution. Known as the "Wolpe Report," it criticized the plea agreement for immunizing Rockwell employees from future prosecution, for the amount of the fine paid by Rockwell, and for the "global nature" of the settlement--the fact that the agreement prohibited both the Colorado Department of Health and the EPA from later prosecuting Rockwell.

Taking sharp issue with the Wolpe Report, the Justice Department charged that it was "misleading, incomplete, and full of inaccuracies." The Department also accused the Subcommittee of violating the confidentiality agreement by quoting extensively from the closed session interviews with department officials and from the internal memoranda the Department had furnished. Claiming that the Subcommittee distorted the record by quoting selectively from and misquoting these materials, the Department authorized full disclosure of the transcripts of the closed interviews "so that the excerpts selectively released by the Subcommittee can be put in context." Letter from Kevin P. Holsclaw, Acting Assistant Attorney General, to Hon. George Brown, Jr., Chairman, House Committee on Science, Space and Technology (Jan. 7, 1993).

Also in response to the Wolpe Report, the Associate Attorney General ordered an internal investigation of the Rocky Flats prosecution. Completed in April of 1994, the investigators' report--we will refer to it throughout this opinion as the "Report"--systematically rebutted each charge leveled by the Wolpe Subcommittee, concluding that "no basis existed for [its] sweeping criticisms." In a separate statement, the Attorney General expressed her hope that the Report would "put this matter to rest." Statement of the Attorney General Concerning the Internal Report on the Rocky Flats Prosecution (April 21, 1994).

Planting the seeds of this litigation, the Report referred to, cited, and quoted from a set of attachments. These included public documents relating to the plea negotiations; formal and informal Justice Department memoranda--some circulated within the Denver U.S. Attorney's office and others sent between Denver and Main Justice--discussing and evaluating the strengths and weaknesses of possible plea negotiation strategies; memoranda summarizing discussions within the Department and between Justice, EPA, and Rockwell; draft letters from the Department to Rockwell regarding the negotiations; and formal and informal communications between the Department and EPA. These attachments were excluded from the version of the Report released to the public.

Rockwell filed a FOIA request for the attachments. In response, the Justice Department released 226 pages of materials, but withheld an additional 386--mostly internal documents and inter-agency communications between Justice and EPA. In doing so, the Department relied on FOIA Exemption 5, which provides that the statute "does not apply to ... 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." 5 U.S.C. § 552(b)(5). "Courts have construed this exemption to encompass the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context, including materials which would be protected under the attorney-client privilege, the attorney work-product privilege, or the executive deliberative process privilege." Formaldehyde Inst. v. Dep't of Health and Human Services, 889 F.2d 1118, 1121 (D.C. Cir. 1989) (internal citations and quotations omitted).

Seeking to compel the Justice Department to disclose the attachments, Rockwell filed suit in the United States District Court here, making three basic arguments: (1) because the Department had extensively cited and quoted from the attachments, it had incorporated them into the Report, and was thus required to disclose them along with the Report under FOIA section 552(a)(2)(A), which requires disclosure of agency final opinions; (2) by disclosing the attachments to Congress, the Department waived their Exemption 5 protection; (3) by quoting from the attachments, describing their contents, and relying on them to vindicate its handling of the Rocky Flats prosecution, the Department waived its litigation privileges for the documents and thus their protection under Exemption 5. The district court rejected all of Rockwell's arguments and entered summary judgment for the government, finding (1) that because the Report could stand alone without its supporting documents, Justice had not incorporated the attachments into the Report; (2) that disclosure to Congress did not waive Exemption 5 protection for the attachments; and (3) that the Department did not waive the attorney-client, deliberative process, or work-product privileges with respect to the attachments. Re-asserting the same basic arguments, Rockwell now appeals. Our review is de novo. Nation Magazine v. United States Customs Serv., 71 F.3d 885, 889 (D.C. Cir. 1995).

II

In addition to its general requirement of disclosure, FOIA directs agencies to index and make available for inspection and copying "final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases...." 5 U.S.C. 552(a)(2)(A). In NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975), the Supreme Court held that this provision trumps Exemption 5: parties must disclose all documents that are agency final opinions, even if they are inter or intra-agency memoranda. The Court also held that "if an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5." Id. at 161 (italics omitted).

Relying on Sears, Rockwell argues that Exemption 5 does not protect the attachments because they were incorporated by reference into the Report, which, it claims, is an agency final opinion. The Department responds that the Report is...