Loving v. U.S. Dept. of Defense

• Decision Date: 26 July 2007
• Docket Number: Civil Action No. 06-1655 (ESH).
• Citation: 496 F.Supp.2d 101
• Parties: Dwight J. LOVING, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 101

496 F.Supp.2d 101

Dwight J. LOVING, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.

Civil Action No. 06-1655 (ESH).

United States District Court, District of Columbia.

July 26, 2007.

COPYRIGHT MATERIAL OMITTED

Seth A. Watkins, Steptoe & Johnson, L.L.P., Washington, DC, Teresa L. Norris,

Blume Weyble & Norris LLC, Columbia, SC, for Plaintiff.

Jean Lin, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

HUVELLE, District. Judge.

Plaintiff Dwight Loving seeks records pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, from the Department of Defense ("DoD") and the Army concerning the President's pending review of plaintiffs military death sentence. This matter is before the Court on the parties' cross-motions for summary judgment. The issue is whether the defendants have properly invoked FOIA Exemption 5 to withhold four documents. As explained herein, the Court finds that the documents at issue were properly withheld. Accordingly, the Court will grant defendants' motion for summary judgment and deny plaintiffs motion for summary judgment.

BACKGROUND

In 1989 plaintiff, an Army private stationed at Fort Hood, Texas, was convicted of felony murder, premeditated murder, attempted murder and robbery under Article 118 of the Uniform Code of Military Justice ("UCMJ"). (Defs.' Statement of Material Facts as to Which There is No Genuine Issue ["Defs.' Statement"] ¶ 1). A general court-martial sentenced plaintiff to death. Loving v. United States, 517 U.S. 748, 751, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). A series of unsuccessful appeals and reviews followed. See United States v. Loving, 41 M.J. 213 (1994), Loving, 517 U.S. 748, 116 S.Ct. 1737. However, the review of plaintiffs death sentence is not yet final, because it has not been approved by the President of the United States. 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"); see also Manual for Courts-Martial, Rule for Courts-Martial ("R.C.M.") 1207 ("No part of a court-martial sentence extending to death may be executed until approved by the President."). The procedure for transmitting a military capital case to the President is set forth in R.C.M. 1204(c)(2) and Army Regulation 190-55, which require the Judge Advocate General to transmit his or her recommendation along with court records and any clemency petition by the prisoner to the Secretary of the Army for action by the President. R.C.M. 1204(c)(2); Army Regulation 190-55.

The Acting Secretary of the Army prepared a memorandum for transmittal of plaintiffs case to the President in November 2004, but the case was then put on hold pending the outcome of plaintiffs appeals. (Defs.' Statement ¶ 9.) In August 2005, plaintiff submitted FOIA requests to the DoD and the Army seeking any documents regarding procedures for the forwarding of military death penalty cases to the President during the relevant times. (See id. ¶ 7.) Plaintiff also submitted Privacy Act requests for any documents containing opinions or recommendations regarding the approval or commutation of his death sentence and any other Army or DoD documents pertaining to his death sentence. (See id.)

In December 2005, the Court of Appeals for the Armed Forces denied plaintiffs two remaining petitions for extraordinary relief, but permitted him to file a habeas petition, which plaintiff did the following month. Loving v. United States, 62 M.J. 235 (2005). In January 2006, the Secretary of the Army delivered plaintiffs case to the White House for presidential action. (Defs.' Statement ¶ 12.) That same month, Loving filed administrative appeals with both the DoD and the Army complaining of the lack of response to his FOIA and Privacy Act requests. (Id. ¶ 13.) In early February 2006, the DoD provided 133 pages of responsive documents and informed plaintiff that 104 further pages were being withheld under FOIA Exemptions 5 and 6. (Id. ¶¶ 17, 21.) Plaintiff filed an administrative appeal in April 2006. (Pl.'s Statement of Material Facts Not in Dispute ["Pl.'s Statement"] ¶ 2.) On September 26, 2006, plaintiff filed this action against the Army and DoD, seeking declaratory and injunctive relief for the release of responsive agency records. (Defs.' Statement ¶ 26.) Days after he filed this action, the Court of Appeals for the Armed Forces ruled in plaintiffs habeas case that his claim of ineffective assistance of counsel at trial was potentially meritorious and ordered an evidentiary hearing to establish the factual predicate for this claim. (Pl.'s Statement ¶ 1.)

After this case was filed, defendants released nearly 700 pages of responsive documents and withheld a similar number of documents under exemptions to FOIA and the Privacy Act. (Defs.' Statement ¶¶ 27, 30, 31, 35.) Defendants then moved for summary judgment, arguing that the documents not produced had been properly withheld. Plaintiff filed a cross-motion seeking release of ten of the withheld documents.

Ultimately, plaintiff narrowed his summary judgment motion to the following four documents which are identified by Vaughn Index number:

# 408 A 31-page memorandum from the Judge Advocate General of the Army to the Secretary of the Army (forwarded to the President pursuant to R.C.M. 1204(c)(2)) reflecting the Judge Advocate General's analysis of plaintiffs case and recommendation as to whether the Secretary should recommend that the President approve plaintiff's death sentence, dated January 13, 2004;

# 499 A one-page memorandum addressed from the Secretary of the Army to the President "containing the [Secretary's] recommendation regarding whether or not PVT Loving's death sentence should be approved," dated November 8, 2004;

# 86 A one-page memorandum from the Secretary of Defense to the President forwarding plaintiffs military court-martial capital case to the President for action, dated January 8, 2006;

# 87 An undated one-page memorandum from the DoD Office of the General Counsel to the Counsel to the President concerning "The President's Action in Two Military Capital Cases."

(Pl.'s Reply at 3.) Defendants contend these documents are exempt under FOIA Exemption 5 because they are subject to the deliberative process privilege, the presidential communications privilege, the attorney-client privilege and/or the attorney work product doctrine. (Defs.' Reply at 8-11.) Plaintiff disputes defendants' privilege claims and argues that the documents are akin to presentence investigation reports ("PSRs"), which must be disclosed under FOIA. (Pl.'s Reply at 4, 7-10.)

ANALYSIS

I. Legal Standard

FOIA mandates that "each agency, upon any request for records ..., shall make the records promptly available to any person" for "public inspection and copying," unless the records fall within one of the nine narrowly construed statutory exemptions. See 5 U.S.C. §§ 552(a)(2) & (a)(3)(A). FOIA is broadly conceived to permit access to official information as part of a "general philosophy of full agency disclosure." EPA v. Mink, 410 U.S. 73, 80 & n. 6, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) (citation omitted); see also Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). An agency withholding information pursuant to a FOIA exemption bears the burden of justifying this decision, and challenges to an agency's decision to withhold documents are reviewed de novo by the district court. See 5 U.S.C. § 552(a)(4)(B); King v. U.S. Dep't of Justice, 830 F.2d 210, 217 (D.C.Cir. 1987).

Summary judgment may be granted to the government in a FOIA case if "the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Greenberg v. U.S. Dep't of Treasury, 10 F.Supp.2d 3, 11 (D.D.C. 1998) (citation omitted). Summary judgment may be awarded based solely on the information provided in declarations or affidavits when they explain "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) (citations omitted). Summary judgment is inappropriate if the declarations are "conclusory, merely reciting statutory standards, or ... too vague or sweeping." King, 830 F.2d at 219 (internal quotation marks and citation omitted).

II. Exemption 5

FOIA Exemption 5, on which defendants rely to withhold the four documents at issue, permits 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." 5 U.S.C. § 552(b)(5). Exemption 5 has been interpreted to incorporate, inter alia, the presidential communications privilege, the attorney-client privilege, the work product doctrine, and the deliberative process privilege. Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 321 (D.C.Cir.2006). Defendants have invoked some or all of these privileges as to the four documents at issue. The test under Exemption 5 is whether upon a showing of relevance, the documents would "routinely" or "normally" be disclosed in a civil discovery context. U.S. Dep't of Justice v. Julian, 486 U.S. 1, 12, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988). Because the Court finds that all four documents are protected by the presidential communications privilege or the deliberative process privilege, the Court need not address the remaining privileges invoked by the government.

The deliberative process privilege protects confidential intra-agency advisory opinions and...