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

• Court: U.S. District Court — District of Columbia
• Writing for the Court: JIA M. COBB United States District Judge.
• Docket Number: Civil Action 15-1055 (JMC)
• Decision Date: 03 September 2024
• Citation: Hall & Assocs. v. U.S. Envtl. Prot. Agency, Civil Action 15-1055 (JMC) (D. D.C. Sep 03, 2024)
• Parties: HALL & ASSOCIATES, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
• topic: Contracts,Administrative Law,Environmental Law,Ongoing or Prospective Litigation,Public Sector Law

1

HALL & ASSOCIATES, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.

Civil Action No. 15-1055 (JMC)

United States District Court, District of Columbia

September 3, 2024

MEMORANDUM OPINION

JIA M COBB United States District Judge.

Plaintiff Hall & Associates (H&A) brought this action against the United States Environmental Protection Agency (EPA) pursuant to the Freedom of Information Act (FOIA), 5 U.S.C § 552, seeking records related to the “EPA's position on the national applicability of the Eighth Circuit decision in Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013).” ECF 1-3 at 2-4.^[1] After years of litigation and a remand from the D.C. Circuit, the EPA released all disputed documents, and this Court dismissed the case as moot. ECF 79 at 2; September 5, 2020 Minute Order. H&A now moves for attorneys' fees and costs. ECF 88. After reviewing the record and applicable case law, the Court agrees that H&A is entitled to some compensation, but not for the full amount of fees requested. Accordingly, for the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART. The Court awards H&A $132,531.51 for its attorneys' fees using the rates set forth in the United States Attorney's Office (USAO) Matrix, and $18,566.81 for its out-of-pocket costs. The fee award represents a significant reduction of the seven-figure award H&A seeks but is warranted for the reasons that will be described in greater detail below.

I. BACKGROUND

A. Factual Background

The Court gleans the following from the record. On March 25, 2013, the Eighth Circuit addressed the legality of a pair of EPA rules on water treatment practices relevant to the Clean Water Act's National Pollution Discharge Elimination System (NPDES). See generally Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013). The EPA, through two letters, had announced policies placing limitations on the use of both (1) “mixing zones,” which allow for a higher concentration of pollutants at the immediate point of discharge so long as they become sufficiently diffused when moving into a larger body of water, and (2) “blending,” whereby a portion of water bypasses the typical secondary treatment process but then joins the final combined stream before discharge. Id. at 857-60. Represented by H&A, a “highly specialized [firm] that focuses on complex Clean Water Act matters,” the Iowa League of Cities challenged the rules under the Administrative Procedure Act (APA). ECF 88-3 ¶¶ 1, 4. The Eighth Circuit vacated both rules as procedurally improper and further held that the blending rule was substantively improper because it exceeded the EPA's statutory authority. Iowa League, 711 F.3d at 875-78.

The EPA started discussing how to respond to the Iowa League decision as early as July 2013. ECF 44-3 at 12; ECF 88-2 at 9. In August 2013, the EPA considered the pros and cons of seeking Supreme Court review of the Eighth Circuit's judgment. ECF 44-3 at 14-15. The EPA identified the ability to “formally or informally acquiesce and thereby limit the effect of the decision to the Eighth Circuit” as a benefit of choosing to not “seek cert.” Id. at 15. The EPA declined to ask the Department of Justice (DOJ) to appeal Iowa League by its internal deadline of August 20, 2013, see id. at 12, and did not petition for a writ of certiorari.

With the Eighth Circuit's judgment in place, the EPA continued analyzing whether it would adhere to the Iowa League decision outside the jurisdiction of the Eighth Circuit. In late October 2013, the EPA reviewed guidance it received “earlier th[at] year” from the DOJ regarding the possibility of “non-acquiescence,” which stated that there was “pretty sound support for the proposition that EPA is not bound to follow Iowa League's reasoning in agency actions that we either know would be reviewed outside the 8th Circuit . . . or where the 8th Circuit is only one of many circuits that could properly hear a judicial challenge.” ECF 44-3 at 41. This document also observed that the EPA “should expect to be subject to judicial challenge” if it were to “express [its] views in written form” and “caution[ed] that any formal expression of non-acquiescence runs the risk of a challenge.” Id.

Starting on or around November 13, 2013, EPA officials made a series of public statements that “the [Iowa League] ruling will only be binding to the 8th Circuit States,” while acknowledging that “they d[idn't] have everything figured out yet.” ECF 44-3 at 59-60 (newsletter from Nebraska Water Environment Association reporting on the “7th Annual 4-State Governmental Affairs Meeting”); see also ECF 44-4 at 9 (newsletter from Missouri Public Utility Alliance reporting that “EPA Headquarters' Associate Counsel Neug[e]boren stated repeatedly that the decision was effective in this region (covered by the Eighth Circuit), but that it was not going to be extended out of this regional area”). Similar language appeared in the EPA's written “Desk Statement” (i.e., a press release) given to Bloomberg News on November 19, 2013, which stated that “[t]he Eighth Circuit's interpretation in [Iowa League] of EPA's regulations . . . is legally binding within the Eighth Circuit,” but that “[o]utside of the Eighth Circuit, EPA will continue to work with States and communities . . . consistent with the Agency's existing interpretation of the regulations.” ECF 44-4 at 41, 76. In a different Bloomberg article published the next day, an EPA official was quoted stating once again that “[o]utside the Eighth Circuit, [the EPA] will be looking on a case-by-case [basis] at situations in particular communities to see what makes sense” and “that the Iowa League ruling is ‘not binding' outside of the Eighth Circuit.” ECF 44-4 at 43.

H&A, now plaintiff in this action, filed multiple FOIA requests related to the EPA's application of Iowa League. See, e.g., ECF 44-3 at 20 (EPA FOIA response to H&A's October 25, 2013 request and December 2, 2013 amendment). At issue in this case is the November 13, 2014 FOIA request that Mr. John C. Hall (founder, president, and senior attorney of H&A) filed in his capacity as the Executive Director of the Center for Regulatory Reasonableness, which sought records related to the EPA's public statements in November 2013 regarding the “EPA's position on the national applicability of the Eight[h] Circuit decision in Iowa League[.]” ECF 1-3 at 3, 7-8. The EPA identified ten responsive documents, which were created between November 14, 2013 and November 26, 2013: Documents 1, 1(a), 1(b), 2, 3, 4, 4(a), 4(b), 5, and 6. ECF 15-12. The documents consist of talking points, memoranda, and emails shared amongst EPA officials, all of which address the EPA's response to the Iowa League decision in and outside of the Eighth Circuit. See generally ECF 112. The EPA released Document 1 in full and withheld the remaining nine in full or in part, justifying the withholdings under FOIA Exemption 5, ECF 15-12, which protects “inter-agency or intra-agency memorandums or letters that 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). Specifically, the EPA claimed the deliberative-process privilege over all nine documents, and the attorney-client privilege as to Documents 1(b), 2, 3, and 5. ECF 15-12.

B. Procedural Background

H&A filed suit against the EPA on July 6, 2015, challenging the EPA's invocation of the attorney-client and deliberative-process privileges. ECF 1 ¶ 1. Through multiple rounds of briefing of cross motions for summary judgment, the EPA's central argument for withholding relied on the deliberative-process privilege, which shields from disclosure predecisional and deliberative documents that reflect advisory opinions, recommendations, and deliberations that eventually lead to official governmental decisions and policies. See ECF 15 (EPA's first motion for summary judgment); ECF 43 (EPA's second motion for summary judgment); ECF 54 (EPA's opposition to Plaintiff's second motion for summary judgment); ECF 55 (EPA's reply in support of its second cross motion for summary judgment); see also ECF 10; ECF 16; ECF 44; ECF 45; ECF 57. The EPA argued that each document was deliberative in character and necessarily predecisional because, even at the time of litigation, “the EPA ha[d] not made a decision to reject the Eighth Circuit decision in Iowa League of Cities.” ECF 15 at 31; see also ECF 43-12 at 12 (“EPA has not, to date, decided whether and to what extent to follow Iowa League of Cities decision outside the Eight[h] Circuit.”); ECF 54 at 20 (same); ECF 54-2 ¶ 18 (same). H&A argued that the EPA had decided not to follow the Iowa League decision outside the Eighth Circuit (i.e., the Agency adopted a policy of “nonacquiescence” to the ruling) as early as August 2013, see supra Section I.A, rendering all documents postdecisional and thus ineligible for the deliberative-process privilege. ECF 44-1 at 26-27.

The Court partially granted and partially denied these cross motions. See Hall & Assocs. LLC v. EPA (Hall III), 315 F.Supp.3d 519, 526 (D.D.C. 2018).^[2] Rejecting the EPA's contention that no nonacquiescence decision had been made but also disagreeing with H&A's asserted timeline, the Court found that the November 19, 2013 press release constituted “a formal announcement of nonacquiescence” with Iowa League. Id. As such, Document 6, which was generated after the press release, was deemed postdecisional and could not be covered by the deliberative-process privilege. Id. at 537. The Court then concluded that Document 4 and portions of Documents 1(a) and 1(b), although predecisional, were not deliberative and similarly could not be shielded by that privilege. Id. at 538-39. The remaining...