Miccosukee Tribe of Indians of Florida v. U.S.
| Decision Date | 15 February 2008 |
| Docket Number | No. 06-13309,06-13309 |
| Citation | 516 F.3d 1235 |
| Parties | MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally recognized Indian Tribe, Plaintiff-Appellant, v. UNITED STATES of America, Environmental Protection Agency, Jimmy Palmer, Regional Administrator of the EPA, Region IV, Stephen L. Johnson, Acting Administrator of the EPA, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Kelly Brooks Smith, Felippe Moncarz, Dexter W. Lehtinen, Lehtinen, Vargas & Riedi, PA., Miami, FL, for Plaintiff-Appellant.
Lisa A. Hirsch, Carole M. Fernandez, Anne R. Schultz, Asst. U.S. Atty., Suzan H. Ponzoli, Miami, FL, for Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before DUBINA and MARCUS; Circuit Judges, and PROCTOR,* District Judge.
The Miccosukee Tribe of Indians (the "Tribe") appeals from an order granting summary judgment in favor of the United States of America; the Environmental Protection Agency; Stephen L. Johnson, Administrator of the EPA; and Jimmy Palmer, Regional Administrator of EPA Region IV (collectively the "EPA") with respect to the Tribe's claims pursuant to the Freedom of Information Act ("FOIA"). The Tribe contends that the district court erred by finding the EPA conducted an adequate search in response to the Tribe's two FOIA requests (an initial request on February 18, 2004, and a supplemental request on June 3, 2004) for documents concerning the EPA's Clean Water Act review of Florida's amendments to the Everglades Forever Act ("EFA") and the Phosphorus Rule for the Everglades Protection Area. It also challenges the district court's determination, after an in camera review, that all withheld documents were properly designated by the EPA as privileged. After careful review, we affirm in part and vacate in part, and remand this case to the district court for further proceedings consistent with this opinion.
On February 18, 2004, the Tribe submitted a FOIA request to the EPA seeking documents concerning the EFA. On March 2, 2004, the EPA advised the Tribe that it would not be able to respond until July 2004 due to the voluminous nature of the records and the EPA's policy of processing requests on a "first-in, first-out basis."
Shortly thereafter, on June 3, 2004, the Tribe wrote a supplemental letter to the EPA, requesting documents "concerning the State of Florida's so-called default criterion for phosphorus," a provision of the EFA that the EPA approved subsequent to the Tribe's February FOIA request. In this supplemental letter, the Tribe contested the EPA's characterization of the initial request as voluminous as well as the EPA's need to extend the time until July 2004 for it to respond. Moreover, the Tribe stated "we [have] no desire to have EPA produce voluminous publicly released documents that we already have."
On July 20, 2004, the Tribe traveled to the EPA Regional Office in Atlanta, Georgia, to review the produced documents deemed by the EPA to be "voluminous" in nature. Two and one-half boxes containing approximately 3,255 pages of documents were presented to the Tribe for review. The Tribe made no secret of the fact that it was disappointed by the small number of documents made available for it to review.
On August 2, 2004, the EPA sent the Tribe a list of the documents not provided for review that the EPA maintained were exempt from disclosure under FOIA Exemption 5. See 5 U.S.C. § 552(b)(5). The Tribe avers that the list was too general and did not allow it to determine whether a privilege was properly invoked.
On April 13, 2005, the Tribe filed, a lawsuit in the Southern District of Florida against the EPA alleging that the EPA failed to comply with FOIA.1 The EPA answered on May 13, 2005, maintaining that the Tribe's complaint failed to state a claim upon which relief could be granted and that any withheld documents were properly exempt from disclosure under Section 552(b)(5).
In July 2005, the Tribe sought to depose three EPA Region 4 employees: Philip Mancusi-Ungaro, EPA Region 4 attorney advisor on Everglades water quality issues; Daniel. Scheidt, the EPA's senior water quality scientist; and Gail Mitchell, Deputy Division Director of the Water Management Division. On July 15, 2005, a magistrate judge granted the Tribe's request by permitting it to depose the EPA employee identified by the agency as having conducted the search for records in this matter. Thus, in lieu of the three employees originally requested by the 'Tribe, the EPA produced for deposition on August 11, 2005, Randy Dominy, Chief of the FOIA and Records Services Section in EPA Region 4. At that time, Dominy was the chief responsible for supervising FOIA search efforts and maintaining the records for Region 4.2
On August 31, 2005, shortly after Dominy's deposition, the EPA produced a supplemental release of 130 documents (some in whole and others in part) responsive to the Tribe's FOIA requests. The EPA stated that upon further review of the previously withheld 130 documents, it had determined that 12 documents could be released in full, and 118 more could be released in a redacted form.
After the supplemental document production, the Tribe sought the deposition of Jennifer Pearce, the EPA FOIA Specialist that Dominy testified had conducted the search, to gain more insight into the EPA's FOIA search and withholdings. The EPA objected to Pearce's deposition.3 On September 2, 2005, during another discovery hearing, the district court ordered that the deposition of Jennifer Pearce be taken regarding her knowledge of the search.
On September 6, 2005, the EPA moved for summary judgment which the Tribe opposed. Attached to the EPA's summary judgment motion were affidavits from Randy Dominy and EPA Region 4 Assistant Regional Administrator Russell L. Wright, Jr. The motion was also accompanied by a Vaughn4 Index of the withheld documents. The Dominy Affidavit explained the process by which the EPA had conducted its search for records responsive to the Tribe's two FOIA requests. The Wright Affidavit described the documents which were withheld, in whole or in part, and explained the basis upon which the records deemed exempt were withheld.
The EPA's dispositive motion was filed while discovery was still pending; therefore, on September 12, 2005, the Tribe requested additional time to file a cross-motion for summary judgment and its opposition to the EPA's motion for summary judgment. Also on September 12, 2006, the EPA filed a motion for relief from the district court's September 2, 2005 order regarding the deposition of Jennifer Pearce. On October 3, 2005, the district court granted in part the Tribe's request for a continuance, denied the EPA's motion for relief from the discovery order, and ordered the EPA to make Jennifer Pearce available for deposition.
On October 7, 2005, the Tribe took Jennifer Pearce's deposition. Her testimony revealed that she had coordinated the EPA's search for records responsive to the Tribe's February and June 2004 FOIA requests and had served as a conduit by forwarding the Tribe's requests to those EPA employees who could locate and provide responsive records.
On October 21, 2005, the Tribe filed its opposition to the EPA's motion for summary judgment. Attached to its opposition were two affidavits purporting to raise issues of material fact that would prevent judgment as a matter of law. First, the Tribe relied on the affidavit of Dr. Terry L. Rice, its hydrology consultant, who incorporated into his affidavit an e-mail forwarding a scientific article to EPA Scientist Daniel Scheidt. Because the attached e-mail and article had not been produced by the EPA in response to the Tribe's FOIA requests, the Tribe argued the existence of a genuine issue of material fact concerning the adequacy of the EPA's search. Second, the Tribe included with its opposition an affidavit by Joette Lorion, an environmental consultant to the Tribe and paralegal to the law firm representing the Tribe. Lorion maintained that: (1) certain consultants to the EPA were, in fact, consultants to the Department of Interior; (2) she had personally seen documents created by EPA attorney Philip Mancusi-Ungaro that were neither produced nor listed as withheld; (3) she was led to believe that the EPA Region 4's number of responsive documents was far greater than the amount produced; and (4) when she reviewed the State of Florida's documents on the amended EFA and the Phosphorus Rule, the State had produced a room full of documents as opposed to the several boxes the EPA had produced. Among the requests included in the Tribe's opposition were additional discovery as well as an in camera review by the court of the withheld documents.
When the Tribe re-articulated its concerns regarding the EPA's FOIA search and withholdings at the November 17, 2005 pre-trial conference, the district court permitted the Tribe to take additional discovery prior to resolution of the motions for summary judgment. Specifically, in its December 6, 2005 Order, the district court directed the EPA to present the following employees for deposition as to matters related to the scope and adequacy of the agency's records search: Philip Mancusi-Ungaro, EPA Region 4 attorney advisor on water quality issues; Daniel Scheidt, EPA Region 4 senior water quality scientist; and Cecilia Harper, environmental scientist who helped with the FOIA search. Moreover, in light of the Tribe's concerns that the EPA's Vaughn Index was not specific enough, and that the. EPA was improperly invoking numerous privileges pursuant to Exemption 5 of FOIA, the district court agreed to conduct an in camera review of the withheld documents. The district court also directed the parties to file supplemental motions for summary judgment following the completion of the additional discovery.
On January 9-10, 2006, the Tribe deposed the three EPA employees—Harper,...
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