Loving v. Department of Defense

• Decision Date: 23 December 2008
• Docket Number: No. 07-5318.,07-5318.
• Citation: 550 F.3d 32
• Parties: Dwight LOVING, Appellant v. DEPARTMENT OF DEFENSE and Department of the Army, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

550 F.3d 32

Dwight LOVING, Appellant v. DEPARTMENT OF DEFENSE and Department of the Army, Appellees.

No. 07-5318.

United States Court of Appeals, District of Columbia Circuit.

Argued October 7, 2008.

Decided December 23, 2008.

Appeal from the United States District Court for the District of Columbia (No. 06cv01655).

Seth A. Watkins argued the cause for appellant. With him on the briefs was Charles F. Schill.

Michael S. Raab, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Mark B. Stern, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Convicted of capital murder by a military court-martial, appellant filed suit under the Freedom of Information Act seeking disclosure of Department of Defense and Army memoranda prepared for the President in connection with his statutory review of appellant's death sentence. The district court found the requested documents exempt from disclosure under FOIA Exemption 5 and granted the government's motion for summary judgment. For the reasons set forth in this opinion, we affirm.

I.

Under Article 71(a) of the Uniform Code of Military Justice, the President must "approve[ ]" all court-martial death sentences before they are carried out. 10 U.S.C. § 871(a) ("If the sentence of the court-martial extends to death, that part of the sentence providing for death may not be executed until approved by the President."). The Rules for Courts-Martial specify procedures for transmitting military death penalty cases to the President, requiring the Judge Advocate General to provide all court records and his or her recommendation to the Secretary of the Army "for the action of the President." MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 1204(c)(2) (2005 ed.), available at http://www.loc.gov/rr/frd/Military_ Law/pdf/manual-2005.pdf.

A general court-martial sentenced appellant, Army Private Dwight Loving, to death after finding him guilty of felony murder, premeditated murder, attempted murder, and robbery. The United States Supreme Court affirmed the capital sentence. See Loving v. United States, 517 U.S. 748, 774, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). Proceeding under the Freedom of Information Act, 5 U.S.C. § 552, Loving asked the Department of Defense and the Army to disclose all records concerning the general procedures for transmitting military death penalty cases to the President, as well as all records concerning Loving's death sentence in particular. While these requests were pending, the Secretary of the Army forwarded Loving's case to the President for action under Article 71(a). Learning of the Secretary's action and having received no response to his FOIA requests, Loving initiated administrative appeals with both the Department of Defense and the Army. The Army never responded. The Defense Department did respond, releasing 133 pages and informing Loving that it was withholding an additional 104 pages under, among other things, FOIA Exemption 5, § 552(b)(5), which allows agencies to withhold documents protected by traditional discovery privileges, see Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 321 (D.C.Cir.2006). Loving then filed a second administrative appeal with the Department of Defense. When the Department failed to respond, Loving filed suit under FOIA, leading the two agencies to release hundreds of documents and withhold many others. The agencies also filed Vaughn indexes describing the withheld documents, see Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973), and moved for summary judgment. Loving narrowed his request to ten documents and cross-moved for summary judgment to compel disclosure. After the two agencies identified six of these ten documents as "drafts," Loving narrowed his request to the four remaining documents. The disclosure of these four documents was the only matter disputed in the district court and is the only issue before us.

As described in the Vaughn indexes, two of the disputed documents reflect the sequential transmission of Loving's case— and recommendations on it—to the President from the Army Judge Advocate General and the Secretary of the Army. The first step in this sequence, Document 408, is a memorandum from the Army Judge Advocate General to the Secretary of the Army, offering "advice outlining the PVT Loving case in detail and providing a recommendation whether the [Secretary of the Army] should recommend approval of the death penalty to the President." Col. Flora D. Darpino Decl. Attach., Mar. 30, 2007. Document 499, in turn, is a one-page memorandum from the Army Secretary forwarding Document 408 to the President, see Darpino Decl. ¶ 33, and providing its own "recommendation regarding whether or not PVT Loving's death sentence should be approved," Darpino Decl. Attach. The third disputed record, Document 86, is a memorandum from the Defense Secretary to the President concerning "Military Court-Martial Capital Case Forwarded for Action, United States v Dwight J. Loving." Robert E. Reed Decl. Ex. A, Mar. 27, 2007. Finally, Document 87 is a one-page memorandum from the Department of Defense Office of General Counsel to the White House Counsel concerning "The President's Action in Two Military Capital Cases." Reed Decl. Ex. A.

Finding Documents 408, 499, and 86 protected by the presidential communications privilege and Document 87 protected by the deliberative process privilege, the district court concluded that FOIA Exemption 5 shielded each of the disputed documents from disclosure. See Loving v. Dep't of Def., 496 F.Supp.2d 101, 107-09 (D.D.C.2007). It therefore granted the government's motion for summary judgment and denied Loving's. Id. at 110.

Loving now appeals. We review the district court's summary judgment ruling de novo, remaining "mindful that the `burden is on the agency' to show that requested material falls within a FOIA exemption," and affirming only if we detect no genuine issue of material fact. Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992) (quoting § 552(a)(4)(B)).

II.

FOIA directs that "each agency, upon any request for records . . . shall make the records promptly available to any person" unless the requested records fall within one of the statute's nine exemptions. § 552(a)(3)(a). Exemption 5, the only exemption at issue here, allows the government to withhold "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." § 552(b)(5). As we have explained, Exemption 5 "incorporates the traditional privileges that the Government could assert in civil litigation against a private litigant"—including the presidential communications privilege, the attorney-client privilege, the work product privilege, and the deliberative process privilege—and excludes these privileged documents from FOIA's reach. Baker & Hostetler LLP, 473 F.3d at 321. Because Exemption 5 covers "those documents, and only those documents, normally privileged in the civil discovery context," NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975), it does not protect documents that are "`routinely' or `normally' disclosed" in civil discovery, Dep't of Justice v. Julian, 486 U.S. 1, 12, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) (quoting FTC v. Grolier Inc., 462 U.S. 19, 26, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983)).

Exemption 5 incorporates two executive privileges that are relevant here: the presidential communications privilege and the deliberative process privilege. See Baker & Hostetler LLP, 473 F.3d at 321. The presidential communications privilege, a "presumptive privilege for [p]residential communications," United States v. Nixon, 418 U.S. 683, 708, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), preserves the President's ability to obtain candid and informed opinions from his advisors and to make decisions confidentially, see Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108, 1112 (D.C.Cir.2004). As such, the privilege protects "communications directly involving and documents actually viewed by the President," as well as documents "solicited and received" by the President or his "immediate White House advisers [with] . . . broad and significant responsibility for investigating and formulating the advice to be given the President." Id. at 1114. The privilege covers documents reflecting "presidential decisionmaking and deliberations," regardless of whether the documents are predecisional or not, and it covers the documents in their entirety. In re Sealed Case, 121 F.3d 729, 744-45 (D.C.Cir.1997).

The deliberative process privilege protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal quotation marks omitted). For the deliberative process privilege to apply, the material must be "predecisional" and "deliberative." In re Sealed Case, 121 F.3d at 737. Unlike the presidential communications privilege, the deliberative process privilege does not protect documents in their entirety; if the government can segregate and disclose non-privileged factual information within a document, it must. Army Times Publ'g Co. v. Dep't of Air Force, 998 F.2d 1067, 1071 (D.C.Cir. 1993).

In support of his claim to the requested documents, Loving relies on Department of Justice v. Julian, 486 U.S. 1, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988), in which the Supreme Court held that Exemption 5 does not protect presentence investigation...