Samahon v. U.S. Dep't of Justice, CIVIL ACTION NO. 13-6462

• Decision Date: 27 February 2015
• Docket Number: CIVIL ACTION NO. 13-6462
• Parties: TUAN SAMAHON, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

TUAN SAMAHON, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

CIVIL ACTION NO. 13-6462

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

February 27, 2015

TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................4

II. PROCEDURAL HISTORY.................................................................................................4

III. BACKGROUND...................................................................................................................6

A. Public Disclosure of the Existence of the Goldsmith and Elwood Memoranda..............8

B. Samahon Requests the Goldsmith and Elwood Memoranda...........................................9

IV. STANDARD OF REVIEW................................................................................................11

V. FOIA....................................................................................................................................13

A. FOIA Overview..............................................................................................................13

B. Exemption 5...................................................................................................................14

VI. ANALYSIS..........................................................................................................................16

A. The DOJ Has Provided an Adequate Factual Basis for the Court to Determine Whether the Memoranda Are Protected by a Privilege..................................................16

B. The Goldsmith and Elwood Memoranda Were Properly Withheld Under Exemption 5...................................................................................................................17

1. Deliberative process privilege...............................................................................17

a. Goldsmith Memorandum.................................................................................18

b. Elwood Memorandum.....................................................................................20

2. Attorney-client privilege.......................................................................................21

3. Presidential communications privilege .................................................................24

C. The Department of Justice Did Not Waive Any Privilege Under Exemption 5 Protecting the Goldsmith and Elwood Memoranda.......................................................26

1. The "adoption or incorporation" exception does not apply to the Goldsmith and Elwood Memoranda.......................................................................................28

a. The Seitz Memorandum is a final opinion of the OLC for FOIA purposes.....30

b. The Obama Administration did not expressly adopt or incorporate the reasoning of the Seitz Memorandum.............................................................31

c. "Temporal proximity" between the recess appointments and the Seitz Memorandum is too speculative to infer adoption ........................................33

d. The Obama Administration did not adopt the reasoning of the Seitz Memorandum through subsequent references to it........................................34

e. The references to the Goldsmith and Elwood Memoranda in the Seitz Memorandum do not support express adoption of those documents by the President..............................................................................................40

2. The "working law" exception does not apply.......................................................44

D. The Court Will Require an In Camera Inspection of the Elwood Memorandum In Order to Decide Whether There Are Any Reasonably Segregable Facts...................47

1. Elwood Memorandum...........................................................................................47

2. Goldsmith Memorandum......................................................................................51

V. CONCLUSION ...................................................................................................................51

OPINION

Slomsky, J.

I. INTRODUCTION

Plaintiff Tuan Samahon brings this action under the Freedom of Information Act ("FOIA") seeking an order to compel the United States Department of Justice to publicly disclose two unredacted internal government memoranda. 5 U.S.C. § 552. Both memoranda sought by Samahon were drafted in the Office of Legal Counsel at the Department of Justice. One was sent to Counsel to the President of the United States. The other was not sent but was maintained in a file at the Office of Legal Counsel. Both memoranda address the legal limits of the presidential recess appointment power granted by the United States Constitution. The Department of Justice claims that both memoranda are ineligible for full disclosure because they are subject to FOIA Exemption 5 as privileged agency memoranda. Plaintiff claims that the Department of Justice waived its privilege because it cited these memoranda in a third memorandum which was publicly-disclosed.

II. PROCEDURAL HISTORY

The parties in this lawsuit are Plaintiff Tuan Samahon, a law professor, and Defendant the United States Department of Justice ("DOJ"). On July 15 and November 6, 2013, Samahon filed FOIA requests with the DOJ Office of Legal Counsel ("OLC"),¹ for two OLC agencyrecords: first, on July 15, 2013, he sought an unredacted version of a 2004 memorandum from Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, titled "Re: Recess Appointments in the Current Recess of the Senate" ("Goldsmith Memorandum"); and second, on November 6, 2013, he sought a 2009 "file" memorandum from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, titled "Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding 'Pro Forma Sessions'" ("Elwood Memorandum").

In letters dated July 26, 2013 and November 15, 2013, the DOJ denied Samahon's two FOIA requests for the Goldsmith and Elwood Memoranda respectively, claiming that both documents were properly withheld under Exemption 5, which protects privileged inter- and intra-agency documents from disclosure. 5 U.S.C. § 552(b)(5). Samahon appealed both denials to the DOJ's Office of Information Policy ("OIP"), which affirmed the OLC decisions on September 10, 2013 and January 24, 2014. (Doc. No. 16 at 4.)

After exhausting his administrative remedies, Samahon instituted the current action in this Court by filing a Complaint (Doc. No. 1) on November 6, 2013 and an Amended Complaint (Doc. No. 16) on February 19, 2014. The Amended Complaint alleges four separate FOIA violations: in Count One, failure to provide an unredacted version of the Goldsmith Memorandum; in Count Two, failure to provide reasonably segregable portions of the Goldsmith Memorandum; in Count Three, failure to release the Elwood Memorandum; and in Count Four, failure to provide reasonably segregable portions of the Elwood Memorandum.(Doc. No. 16 ¶¶ 36-63.) In the Amended Complaint, Samahon requests an order declaring the nondisclosures unlawful, and seeks injunctive relief and attorney's fees. (Id. at 12.)

Before the Court are the parties' cross-motions for summary judgment. In deciding the motions, the Court has considered the following documents: Defendant's Motion for Summary Judgment filed on May 7, 2014 (Doc. No. 22), Plaintiff's Motion for Summary Judgment filed on June 18, 2014 (Doc. No. 24), Defendant's Response in Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in Support of its Motion for Summary Judgment filed on July 16, 2014 (Doc. No. 25), and Plaintiff's Reply to Response to Motion for Summary Judgment (Doc. No. 28).

For reasons that follow, Defendant's Motion for Summary Judgment will be granted on Counts One, Two, and Three of the Amended Complaint, and Plaintiff's Motion for Summary Judgment will be denied on those counts. The Court, however, will reserve judgment on Count Four, pending the results of an in camera inspection of the Elwood Memoranda to determine what, if any, portion of this Memorandum should be disclosed because it may contain facts that are nonexempt and reasonably segregable from exempt material.

III. BACKGROUND

Plaintiff Samahon is a tenured professor at Villanova University School of Law, where he researches separation of powers at the federal level. (Doc. No. 1 at 2.) According to Samahon, his FOIA requests and this litigation arose out of his research about the scope of the President's recess appointment power.² (Id.) Under FOIA, he requests disclosure of theGoldsmith and Elwood Memoranda because he believes the advice contained therein served as a legal foundation for President Barack Obama's January 4, 2012 decision to use his recess appointment power to fill three vacancies on the National Labor Relations Board during skeletal "pro forma" sessions³ of the Senate. The appointments were made without Senate approval.⁴ (Doc. No. 16 at 1, 4.) The recess appointments made during the pro forma sessions were met with public criticism and judicial scrutiny, and ultimately were held unconstitutional by the Supreme Court in National Labor Relations Board v. Noel Canning, 134 S. Ct. 2550 (U.S. 2014).⁵

A. Public Disclosure of the Existence of the Goldsmith and Elwood Memoranda

The Goldsmith and Elwood Memoranda were not disclosed to the public at the time of their creation in 2004 and 2009. Their existence was first revealed on January 12, 2012 through public dissemination of another OLC memorandum to Counsel to President Obama from Viriginia Seitz, Assistant Attorney General, entitled "Re: Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions." This memorandum, known as the "Seitz Memorandum," was written on January 6, 2012—two days after the ...