City of Virginia Beach, Va. v. U.S. Dept. of Commerce

• Decision Date: 09 June 1993
• Docket Number: No. 93-1038,93-1038
• Citation: 995 F.2d 1247
• Parties: The CITY OF VIRGINIA BEACH, VIRGINIA; Thomas M. Leahy, III, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1247

995 F.2d 1247

The CITY OF VIRGINIA BEACH, VIRGINIA; Thomas M. Leahy, III Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant-Appellant.

No. 93-1038.

United States Court of Appeals, Fourth Circuit.

Argued April 1, 1993.

Decided June 9, 1993.

Steve Frank, Civ. Div., U.S. Dept. of Justice, Washington, DC (Stuart M. Gerson,

Asst. Atty. Gen., Richard Cullen, U.S. Atty., Leonard Schaitman, on brief), for appellant

George A. Somerville, Mays & Valentine, Richmond, VA (John F. Kay, Jr., M. Scott Hart, Susan Warriner Custer, Richmond, VA, Leslie L. Lilley, City Atty., William M. Macali, Asst. City Atty., City of Virginia Beach, Virginia Beach, VA, on brief), for appellees.

Before PHILLIPS, HAMILTON, and LUTTIG, Circuit Judges.

OPINION

PHILLIPS, Circuit Judge:

In this case, we consider the scope of the deliberative process privilege incorporated into Exemption 5 of the Freedom of Information Act ("FOIA"), 5 U.S.C.A. § 552 (1988 & Supp.1993). The United States Department of Commerce ("the government") appeals an order of summary judgment requiring its branch agency, the National Marine Fisheries Service ("NMFS"), to release certain documents withheld from the City of Virginia Beach, Virginia and City Engineer Thomas M. Leahy III (collectively, "the City"). Virginia Beach v. United States Dep't of Commerce, 805 F.Supp. 1323 (E.D.Va.1992). We affirm in part, reverse in part, and remand.

I

The Roanoke River flows from the mountains of Virginia southeast to the coast, emptying into the Albemarle Sound in northeastern North Carolina. The river is dammed in several places to control flooding and to generate hydroelectric power. Virginia Electric and Power Company ("VEPCO") operates such a dam and the resulting reservoir, called Lake Gaston, under license from the Federal Energy Regulatory Commission ("FERC"). J.A. 38.

In the late 1970s, facing increasingly serious water shortages, the City sought permission from the United States Corps of Engineers ("the Corps") to build a pipeline to withdraw up to 60 million gallons of water per day from Lake Gaston. During the permit proceedings, NMFS expressed concern about the project's possible impact on the reproductive success of an already declining striped bass population. In 1983, however, NMFS concurred with the Corps' finding that the project would have no significant environmental impact ("FONSI") and with the correlative conclusion that no environmental impact statement ("EIS") was necessary. J.A. 147. In 1984, the Corps granted the City its construction permit.

The State of North Carolina and other interested parties challenged that decision under the Administrative Procedure Act, 5 U.S.C. § 706 (1977). The district court for the Eastern District of North Carolina affirmed in part but remanded for reconsideration of the need for an EIS or mitigative measures, and for reassessment of the City's water needs. North Carolina v. Hudson, 665 F.Supp. 428 (E.D.N.C.1987). After that remand, NMFS reassigned review authority for the project from its Northeastern Region to its Southeastern Region, whose personnel--particularly those based in North Carolina--included experts on Roanoke Basin fishery resources. Relations between the City and NMFS deteriorated markedly thereafter.

For example, during the remand the City conducted a seminar on its proposal to mitigate the project's effects on downstream fishery resources. The plan was to divert stored waters to offset reduced flow at key points in the striped bass spawning cycle. NMFS attended the seminar and, the City contends, subsequently forwarded the mitigation plan to other agencies, where it was favorably reviewed. J.A. 134-35. Nevertheless, in 1988 NMFS recommended to the Corps that the City should prepare an EIS after conducting "a full environmental impact study." North Carolina v. Hudson, 731 F.Supp. 1261, 1270 (E.D.N.C.1990), aff'd, 940 F.2d 58 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1164, 117 L.Ed.2d 411 (1992). NMFS did not account for the City's mitigation proposal in taking that position, Hudson, 731 F.Supp. at 1270 n. 10, and upon inquiries from U.S. Congressman Walter Jones (D-N.C.), represented that it had not seen the mitigation proposal. J.A. 165. NMFS later admitted that representation to be incorrect. J.A. 208. The incident sparked frustration and concern among City personnel. J.A. 18.

At the conclusion of the proceedings on remand, the Corps confirmed its prior assessment that the project would have no significant environmental impact and rejected NMFS' recommendation that an EIS be required. As a precautionary measure, however, the Corps conditioned its permission to construct the pipeline on the City's implementation of mitigation procedures. That decision was upheld on judicial review. Hudson, 731 F.Supp. at 1273.

With the construction permit in hand, the City needed easements from VEPCO to build the pipeline. VEPCO could not grant the easements without permission from FERC. FERC, in turn, is required by statute to solicit NMFS' comments upon such proceedings in order to conserve and promote fishery resources. 16 U.S.C. §§ 803(j)(1), 811, 662(a)-(b). On July 23, 1990, VEPCO independently solicited NMFS comments on issues raised by the easement proceedings, intending to incorporate NMFS' input into its application process. J.A. 34.

On July 30, the City also wrote to NMFS Director William W. Fox, Jr., raising a number of concerns regarding the agency's position on the pipeline. First, the City asked five specific questions, which focused primarily on the justifications for (1) NMFS' failure to approve the City's mitigation plan; (2) its conclusion that the pipeline required an EIS; and (3) its decision to shift project review responsibility to its Southeastern Region. In lengthy appendices to the July letter, the City also raised several allegations that key personnel in the Southeastern Region were infecting the review process with their bias against the project. ¹ J.A. 141-206; S.A. 18-19.

Concerned by the "strong nature of the allegations," Fox sought an "independent review of the facts." S.A. 7. Consequently, he turned to the General Counsel's office of NMFS' parent agency, the National Oceanic and Atmospheric Administration ("NOAA"). (At the time, Fox was also NOAA's Assistant Administrator of Fisheries. J.A. 94.) An investigation was conducted by Kevin Collins, a novice attorney with the General Counsel-Fisheries Division. Collins submitted the results of his study, since denominated "the Collins Report," to a member of Fox's staff. Id. The Southeastern Region, however, did not receive the Collins Report until August 31--the day after it had responded to VEPCO's request for comments on the upcoming FERC proceedings. J.A. 42; S.A. 7.

On September 11, 1990, Fox sent an "interim response" to the City's July letter, stating that the agency was preparing replies to the five specific questions and that, with respect to the "allegations regarding NMFS' handling of [the pipeline] project, ... [the agency had] conducted an independent analysis of this matter." J.A. 207. In October, the City again wrote to NMFS, seeking justification for the comments that the agency had submitted to VEPCO in anticipation of the FERC proceedings. Although the City's July letter ostensibly had focused on NMFS' shifting stance during the completed Corps permit proceedings, while the October letter focused on the agency's comments regarding the pending FERC proceedings, the issues raised in the letters overlapped significantly. ²

In November 1990, Fox responded to the City's July and October letters in a single missive. J.A. 29-30. He addressed two of the five specific questions raised in the July letter and, through an appendix, several of the specific questions raised in the October letter. He did not discuss the allegations of impropriety, mentioning neither the existence of the Collins Report nor the firestorm it ignited in the Southeastern Region. ³ Nor did Fox explain the agency's failure to approve the City's mitigation proposal, construing that issue as mooted by the judicial approval of the Corps' final decision to grant the construction permit. Id.

Unsatisfied with Fox's response, the City filed a FOIA request in December 1990 ⁴ for sixteen enumerated categories of documents along with any others "related in any way to the Lake Gaston project." J.A. 16. NMFS released some of the documents, but withheld others under FOIA's Exemption 5, which shields "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). Exemption 5 covers attorney work-product, Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 864 (D.C.Cir.1980), along with documents "that would routinely be shielded from discovery in private litigation because of the government's 'executive privilege', which protects the 'deliberative or policymaking processes' of government agencies." Access Reports v. Department of Justice, 926 F.2d 1192, 1194 (D.C.Cir.1991) (citations omitted).

After exhausting its administrative appeals, the City filed the instant action to obtain the withheld documents. The government moved for summary judgment. The Magistrate Judge recommended granting the motion. After the City filed a supplemental memorandum and affidavit, the district court remanded for reconsideration of the newly submitted materials and for in camera review of the withheld documents. The Magistrate Judge then recommended that seven documents be released in full or in part, but that the remaining items be protected by Exemption 5 either as work product or as reflecting the agency's deliberative process. ⁵ J.A. 259-63, 265, 275-76.

Both parties filed objections to the Magistrate Judge's recommendation. With respect to the documents categorized as exempt work product, after in camera...