Hall & Assocs. LLC v. U.S. Envtl. Prot. Agency

• Citation: 315 F.Supp.3d 519
• Decision Date: 22 May 2018
• Docket Number: No. 15–cv–1055 (KBJ),15–cv–1055 (KBJ)
• Parties: HALL & ASSOCIATES LLC, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

315 F.Supp.3d 519

HALL & ASSOCIATES LLC, Plaintiff,

v.U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.

No. 15–cv–1055 (KBJ)

United States District Court, District of Columbia.

Signed May 22, 2018

Gary B. Cohen, John C. Hall, Philip D. Rosenman, Hall & Associates, Washington, DC, for Plaintiff.

Claire M. Whitaker, Fred Elmore Haynes, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

"The selective refusal of administrative agencies to conduct their internal proceedings consistently with adverse rulings of the courts of appeals—a practice commonly termed agency nonacquiescence—is not new in American law." Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies , 98 Yale L.J. 679, 681 (1989). As far as this Court can tell, agencies often publicly announce their decisions to limit the reach of an adverse circuit court ruling, see, e.g. , Nat'l Envtl. Dev. Ass'n Clean Air Project v. EPA , 752 F.3d 999, 1003 (D.C. Cir. 2014), which means that, for the purpose of the Freedom of Information Act ("the FOIA"), records that reflect the agency's internal deliberations prior to its nonacquiescence announcement are fairly deemed both predecisional and deliberative, see 5 U.S.C. § 552(b)(5). Here, the Environmental Protection Agency ("the EPA") maintains that it has not yet made a nonacquiescence decision with respect to a certain circuit court ruling that was handed down five years ago—a representation that Plaintiff Hall & Associates LLC ("H & A"), an environmental consulting firm, vigorously disputes. Thus, in order to evaluate the propriety of the EPA's invocation of the deliberative-process privilege with respect to H & A's request for records concerning the EPA's purported nonacquiescence, this Court must decide whether the agency has, in fact, made a nonacquiescence decision, and if so, when ?

These and other privilege issues arise in the context of the instant FOIA lawsuit, which H & A filed against the EPA in July of 2015. (See Compl., ECF No. 1.) Notably, at that point, H & A had been on a crusade against the EPA's regulation of a water treatment practice known as "blending" for at least 6 years. See Ctr. for Regulatory Reasonableness v. EPA , 849 F.3d 453, 454 (D.C. Cir. 2017). The details of the EPA's policies with respect to blending are not pertinent to the instant case; it suffices to say that, in 2013, in a case called Iowa League of Cities v. EPA , 711 F.3d 844 (8th Cir. 2013), the Eighth Circuit vacated an EPA rule pertaining to that practice at H & A's behest, on the grounds that the agency had effectively propagated a legislative rule regarding blending practices without engaging in the required notice and comment procedures, id. at 872–76. H & A believes that the EPA has decided not to apply the Eighth Circuit's decision on a nationwide basis, and the instant action pertains to one of H & A's many attempts to locate internal agency documents that reflect the EPA's decision-making in this regard.

As relevant here, in the wake of Iowa League of Cities , H & A submitted a records request to the EPA under the FOIA, asking for documents relating to the agency's approach to blending outside of the Eighth Circuit. (See Compl. ¶¶ 2–3.) According to H & A, the EPA withheld responsive documents and information on the grounds that the attorney-client and deliberative-process privileges shield these documents from disclosure pursuant to FOIA Exemption 5. (See id. ¶ 5.) And now, in the instant lawsuit, H & A accuses the EPA of improperly withholding those records because it contends that the agency has decided not to apply the Eighth Circuit's ruling nationally, and the requested records reflect as much, thereby revealing the "working law" of the agency. (See id. ¶¶ 38–40; see also id. ¶ 37 (asserting that "[the] EPA has clearly rendered a final decision regarding the national applicability of the ILOC decision" and that "H & A's Request [merely] sought the decision documents themselves, and the bases of this decision" because "[t]he regulated community has a right to know the Agency's working law").)

Before this Court at present are the parties' cross-motions for summary judgment along with several other procedural motions that H & A has filed. (See Mem. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem."), ECF No. 43; Pl.'s Mem. in Supp. of Its Cross–Mot. for Summ J., Mot. for Leave to Amend Its Compl., Resp. in Opp'n to Def.'s Mot. for Summ. J., Mot. to Conduct Limited Disc. & Strike the Nagle Decl. ("Pl.'s Mem."), ECF No. 44–1.) In its summary judgment motion, the EPA maintains that, because no nonacquiescence decision has been made to date, the deliberative-process and attorney-client privileges permit the agency to withhold the predecisional deliberations and confidential attorney-client communications contained within the documents H & A requests. (See Def.'s Mem. at 17–23.)¹ H & A responds that the EPA made its decision about how it would respond to Iowa League of Cities back in August of 2013, and thus the agency has wrongfully invoked the deliberative-process and attorney-client privileges to shield records that actually constitute the working law of the agency. (See Pl.'s Mem. at 20–38.)

On March 31, 2018, this Court issued an Order that GRANTED IN PART and DENIED IN PART both parties' cross-motions for summary judgment, and that also DENIED (as moot or otherwise) H & A's requests to amend its complaint, conduct discovery/strike a declaration that the agency had submitted, and accelerate the Court's consideration of this case. (See Order, ECF No. 68.) This Memorandum Opinion provides the Court's reasons for that Order. In short, after reviewing the parties' briefs, examining the record, and conducting an in camera review of the disputed documents in this case, this Court concludes that the EPA made a nonacquiescence decision with respect to the Eighth Circuit's Iowa League of Cities opinion as of November 19, 2013. Yet, because that decision post-dated the creation of the vast majority of the nine documents that remain in dispute in this case, and also because most of the redactions in these documents shield the authors' subjective opinions, this Court concludes that the EPA's withholdings are largely justified, with a few exceptions. In reaching this conclusion, the Court also rejects the argument that these documents constituted the working law of the agency, or were officially acknowledged by the EPA; again, with one minor exception. The Court has further concluded that the EPA has not acted in bad faith in this litigation or in its handling of H & A's FOIA request, and thus, H & A's motion to strike, motion for discovery, and request for sanctions have been denied.

I. BACKGROUND

A. H & A's FOIA Request

On November 13, 2014, H & A filed a FOIA request with the EPA (see FOIA Request, Ex. A to Renewed Decl. of Deborah Nagle, ECF No. 43–2), seeking an array of documents that had been prepared for, or were created by, two high level agency officials—Nancy Stoner, the EPA's former Acting Assistant Administrator for Water, and Mark Pollins, the Director of the EPA's Water Enforcement Division. The documents that H & A requested pertained to two national Clean Water Act seminars that occurred in November of 2013 and April of 2014. (See id. at 2–3.) Specifically, H & A sought

(1) [a]ny EPA records which discuss whether or not Ms. Stoner's November 2013 statement was accurately reported in the trade press;

(2) [a]ny talking points and/or other materials prepared for Ms. Stoner and/or Mr. Pollins in advance of their presentations at either of the above-referenced events or used by them at the events;

(3) [a]ny presentation materials EPA distributed as part of the aforementioned presentations;

(4) [a]ny records that either Ms. Stoner or Mr. Pollins created as part of their respective presentations; and

(5) [a]ny records that either Ms. Stoner or Mr. Pollins created in preparation for their respective presentations.

(Id. at 3.)

After speaking with the EPA about the scope of this request, H & A agreed to narrow its FOIA request to the records in the above categories that pertain to the "EPA's position on the national applicability of the Eighth Circuit decision in Iowa League of Cities [.]" (Scope Emails, Ex. B. to Renewed Decl. of Deborah Nagle, ECF No. 43–3, at 3–4.) Then, on January 22, 2015, the EPA issued its response, identifying ten documents that were responsive to H & A's request. (See EPA Response, Ex. C to Renewed Decl. of Deborah Nagle, ECF No. 43–4, at 2–3.) Based on the EPA's Vaughn Index (see Vaughn Index, Ex. K to Renewed Decl. of Deborah Nagle, ECF No. 43–12, at 2–16), as well as this Court's review of the unredacted versions of these records, those ten documents are generally described as follows.

Document 1 is an email that was transmitted to a number of EPA officials on November 15, 2013, suggesting a meeting, with the subject line "Iowa League of Cities." Document 1(a), also dated November 15, 2013, is an early draft of talking points discussing the implications of the Iowa League of Cities decision and possible approaches that the EPA could take in light of that decision. Document 1(b) is a draft memorandum that further discusses how Iowa League of Cities could impact the EPA's regulations and its future decision-making activities. Document 2 is an email sent from Nancy Stoner to EPA staff members and attorneys on November 14, 2013, discussing the Iowa League of Cities decision, and Document 3 is an email from November 15, 2013 in response. Document 4 is an email exchange between assorted employees at EPA Headquarters, dated November 18, 2013, transmitting certain other documents—(Documents 4(a) and 4(b) )—to supervisors at EPA Headquarters. Document 4(a) is a subsequent version of Document 1(a), while Document 4(b) consists of a draft document that discusses various...