National Immigrant Justice Cen v. DOJ ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2088
NATIONAL IMMIGRANT JUSTICE CENTER,
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cv-4691 — Andrea R. Wood, Judge.
____________________
ARGUED FEBRUARY 14, 2020 — DECIDED MARCH 23, 2020
____________________
Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Receiving confidential advice is es-
sential to sound decision-making. The law of privilege owes
its existence to that reality and finds application in many set-
tings, including decision-making within the executive branch
of our national government. Consider the setting front and
center in this appeal—immigration. Congress has empow-
ered the Attorney General with enforcement, rulemaking, and
adjudicatory authority. The exercise of that power is of great
2 No. 19-2088
consequence on many fronts, including in the direction of the
nation’s immigration policy and the lives of many noncitizen
immigrants. Those very same reasons explain why the Attor-
ney General, as part of exercising the responsibility conferred
by Congress, will seek and receive confidential input from a
range of advisors within the Department of Justice.
Unsettled by decisions made by Attorneys General across
three presidential administrations, the National Immigrant
Justice Center invoked the Freedom of Information Act and
sought access to all records of communications to and from
the Attorney General in certain immigration appeals certified
for executive decision. The Department of Justice honored as-
pects of the requests but withheld many responsive docu-
ments on the basis of FOIA’s exemption for communications
protected by the deliberative process privilege. The district
court found the withholding proper, and so do we. To con-
clude otherwise would chill the deliberations that department
and agency heads like the Attorney General undertake in con-
fidence to execute the weighty responsibilities of their offices.
I
A
The National Immigrant Justice Center provides immigra-
tion legal services for low-income noncitizens. To advance its
mission, NIJC lodged a FOIA request with the Department of
Justice for communications related to the Attorney General’s
decisions in certain immigration appeals. Some background
on immigration removal proceedings and the Attorney Gen-
eral’s role in them puts in context NIJC’s request and our en-
suing analysis.
No. 19-2088 3
When the government believes that a noncitizen is in the
United States without permission, the Department of
Homeland Security may initiate removal proceedings in
immigration court. The immigration court is not an Article III
federal court, but instead resides within the executive
branch—specifically, within the Department of Justice’s
Executive Office for Immigration Review. See 8 C.F.R. §
1003.14. Either party can appeal an immigration judge’s
removal decision to the Board of Immigration Appeals or BIA.
See id. § 1003.38. The BIA likewise resides within DOJ. See id.
DHS attorneys are tasked with defending and pursuing
appeals before the BIA.
As the head of DOJ, the Attorney General has discretion-
ary authority to review any BIA decision. See 8 C.F.R.
§ 1003.1(h). This review happens through a process known as
certification. See id. § 1003.1(h)(1)(i). Upon certifying a case,
the Attorney General proceeds to review the Board’s removal
decision and issues a binding and precedential opinion. See
id. § 1003.1(g), (h). The Attorney General does not do this
work in isolation, and instead may tap DOJ’s full resources
for advice and assistance. Indeed, federal regulations recog-
nize that the Attorney General may consult with attorneys
from across the Department, including the Office of Legal
Counsel, the Office of Immigration Litigation, and the Office
of the Solicitor General as part of the deliberative decision-
making process within DOJ. See 28 C.F.R. §§ 0.20(a), (d),
0.25(a), 0.45(k).
After the removal proceedings have run their course in the
executive branch, the immigrant can petition a federal circuit
court for review of a BIA or Attorney General decision. See 8
U.S.C. § 1252. At that stage, attorneys from DOJ’s Office of
4 No. 19-2088
Immigration Litigation represent the government. See 28
C.F.R. § 0.45(k). Attorneys from the Office of the Solicitor Gen-
eral fulfill that responsibility if a case proceeds to the Supreme
Court. See id. § 0.20(a).
B
In December 2010, NIJC submitted to DOJ a FOIA request
for records of all communications between the Attorney Gen-
eral, the Office of the Attorney General, and any lawyer in the
Department’s Office of Immigration Litigation or the Office of
the Solicitor General related to 11 certified cases decided be-
tween 2002 and 2009. DOJ produced about 1,000 pages of doc-
uments but withheld over 4,000 more on the basis of exemp-
tions Congress provided in FOIA. Among the exemptions
DOJ invoked was Exemption 5, which allows the withholding
of agency memoranda not subject to disclosure through the
discovery process in the ordinary course of litigation. See 5
U.S.C. § 552(b)(5). Courts have interpreted Exemption 5 to en-
compass the attorney work product, attorney client, and de-
liberative process privileges. See NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 149 (1975); see also King v. IRS, 684 F.2d 517, 519
(7th Cir. 1982). This appeal centers around 300 responsive
documents withheld on the basis of the deliberative process
privilege. We have no occasion to discuss documents with-
held on other grounds.
NIJC filed suit challenging DOJ’s withholdings and in
time the parties cross-moved for summary judgment. DOJ
shouldered the burden of demonstrating the propriety of its
invocation of Exemption 5. See Patterson v. IRS, 56 F.3d 832,
836 (7th Cir. 1995) (explaining that at summary judgment, the
government must provide affidavits describing the docu-
ments and its reason for withholding them “with sufficient
No. 19-2088 5
specificity to demonstrate that material withheld is logically
within the domain of the exemption claimed” (quoting PHE,
Inc. v. Dep’t of Justice, 983 F.2d 248, 250 (D.C. Cir. 1993))). To
carry that burden, DOJ submitted affidavits detailing the
search for responsive documents as well as a so-called
Vaughn index—a log listing and describing each document
withheld (in whole or part) from production. See id. at 839
n.11.
DOJ’s Vaughn index itemized hundreds of documents
(mainly email correspondence) reflecting discussions be-
tween attorneys working within different offices of issues re-
lated to immigration cases under consideration or on certifi-
cation for decision by the Attorney General. A few examples
provide a more detailed flavor:
 A memorandum from the Office of the Dep-
uty Attorney General to Attorney General
John Ashcroft about five BIA decisions to
consider certifying;
 Emails between attorneys from the Office of
Immigration Litigation, the Office of Legal
Policy, and the Offices of the Attorney Gen-
eral and the Deputy Attorney General about
an amicus curiae brief received in the Matter
of Silva-Trevino before Attorney General Mi-
chael Mukasey issued his opinion; and
 Emails between attorneys from the Offices of
the Attorney General and Solicitor General
commenting on a draft order of Attorney
General Eric Holder vacating a previous
opinion in the Matter of Compean.
6 No. 19-2088
NIJC did not quibble with DOJ’s representations that the
withheld documents contained deliberative communications.
Rather, NIJC challenged DOJ’s withholding on the ground
that the documents also contained ex parte communications
outside the scope of Exemption 5.
It takes some untangling to explain how NIJC sees the
withheld documents as containing ex parte communications.
NIJC starts with the assertion that the DOJ attorneys’ eventual
litigation role taints the advice they provide the Attorney
General at the certification stage. “[P]retending these offices
can set aside their adversarial interests when advising the At-
torney General ignores reality,” NIJC urges, because removal
proceedings almost always end in federal court litigation
where those exact same attorneys are opposite the immigrant.
Put most directly, “[b]ecause those offices may end up litigat-
ing against the immigrant in federal court, their communica-
tions with the Attorney General must be disclosed” as ex parte
communications. NIJC insists that any other conclusion af-
fords the noncitizen a disadvantage in litigation because the
DOJ attorneys will have contributed to the substance of the
Attorney General’s decision in ways that can have a substan-
tial and detrimental effect on the immigrant’s ability to re-
main in the United States. So, as NIJC would have it, the only
way to level the playing field—to achieve fairness and avoid
bias—is to view the DOJ attorney advice as ex parte commu-
nications outside the protection of Exemption 5.
The district court rejected NIJC’s position and concluded
that Exemption 5 applied. The withheld documents did not
contain ex parte communications, the court reasoned, because
the Office of Immigration Litigation and Solicitor General at-
torneys do not hold interests adverse to the noncitizen at the
No. 19-2088 7
stage of a removal proceeding at which the Attorney General
certifies a case for decision. To the contrary, at that stage all
DOJ attorneys “were simply groups within the same agency
as the Attorney General, giving advice.”
NIJC now appeals.
III
A
Congress enacted the Freedom of Information Act to “en-
sure an informed citizenry” and to “hold the governors ac-
countable to the governed.” Rubman v. U.S. Citizenship & Im-
migration Servs., 800 F.3d 381, 386 (7th Cir. 2015). The enact-
ment favors disclosure: federal agencies must produce each
and every responsive record unless it fits within a statutory
exemption. See 5 U.S.C. § 552(a)(4)(B); see also Mead Data
Cent., Inc. v. U.S. Depʹt of Air Force, 566 F.2d 242, 259 (D.C. Cir.
1977) (“Where there is a balance to be struck, Congress and
the courts have stacked the scales in favor of disclosure and
against exemption.”).
This appeal revolves around Exemption 5. By its terms,
this exemption authorizes the withholding of “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). As the Supreme Court
recognized in Sears—a case decided nine years after FOIA’s
enactment in 1966—Congress intended the statute’s exemp-
tions to mirror civil discovery privileges. See 421 U.S. at 149.
The Court therefore recognized that Exemption 5 incorpo-
rates the deliberative process privilege. See id. at 150; see also
EPA v. Mink, 410 U.S. 73, 86 (1973) (explaining the “recognized
rule” that confidential agency advisory opinions were
8 No. 19-2088
privileged and therefore ordinarily exempt from production
in civil discovery absent a showing of hardship).
The deliberative process privilege, as its name implies, al-
lows an agency to withhold “all papers which reflect the
agency’s group thinking in the process of working out its pol-
icy and determining what its law shall be.” Sears, 421 U.S. at
153. The privilege “prevent[s] injury to the quality of agency
decisions.” Id. at 151. Or, as the D.C. Circuit has put the same
point, the privilege serves the important purpose of facilitat-
ing “frank discussion of legal and policy issues.” Wolfe v.
HHS, 839 F.2d 768, 773 (D.C. Cir. 1988) (en banc); see also Ju-
dicial Watch, Inc. v. Dep’t of Energy, 412 F.3d 125, 129 (D.C. Cir.
2005) (explaining that the “inclusion [of the deliberative pro-
cess privilege] in the [FOIA] statute ‘reflects the legislative
judgment that the quality of administrative decision-making
would be seriously undermined if agencies were forced to
“operate in a fishbowl” because the full and frank exchange
of views on legal or policy matters would be impossible’”
(quoting Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir.
1997))). The privilege roots itself in “the obvious realization
that officials will not communicate candidly among them-
selves if each remark is a potential item of discovery and front
page news[.]” Dep’t of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8–9 (2001).
The privilege is not unlimited, however. To the contrary—
and in full alignment with the Supreme Court’s repeated ad-
monition to construe FOIA exemptions with a “narrow com-
pass,” see id. at 8—we insist on the government making a two-
fold showing to support the withholding of a record based on
the deliberative process privilege. First, the document must
be pre-decisional, meaning that it must be “generated before
No. 19-2088 9
the adoption of an agency policy.” Tax Analysts, 117 F.3d at
616 (internal citations omitted). Second, the record in question
must contain deliberative communications and therefore “re-
flect the give-and-take of the consultative process.” Id.; see
also Enviro Tech Intʹl, Inc. v. EPA, 371 F.3d 370, 375 (7th Cir.
2004) (explaining that documents were deliberative because
they reflected “the internal dialogue at the EPA” regarding a
proposed rule).
The Federal Reporter contains many examples of courts
(including our own) sustaining an agency’s invocation of de-
liberative process privilege in response to a FOIA request. See,
e.g., Enviro Tech, 371 F.3d at 375 (allowing the withholding of
draft documents and internal recommendations related to a
new EPA regulation to limit workplace exposure to a toxin);
Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 899 (D.C.
Cir. 2015) (upholding withholding of DHS asylum inter-
viewer’s report to supervisor assessing asylee’s credibility
and consistency before making a decision on asylum applica-
tion because “[a] recommendation to a supervisor on a matter
pending before the supervisor is a classic example of a delib-
erative document”); Elec. Frontier Found. v. Dep’t of Justice, 739
F.3d 1, 9–10 (D.C. Cir. 2014) (concluding that a legal opinion
prepared by DOJ’s Office of Legal Counsel for the FBI about
a policy of obtaining certain telephone records was protected
by deliberative process privilege); Natʹl Sec. Archive v. CIA,
752 F.3d 460, 463 (D.C. Cir. 2014) (affirming the invocation of
deliberative process privilege to justify withholding of CIA
historian’s draft of the fifth volume on the Bay of Pigs inva-
sion); Natʹl Wildlife Fedʹn v. U.S. Forest Serv., 861 F.2d 1114,
1120 (9th Cir. 1988) (determining that the deliberative process
privilege supported withholding the U.S. Forest Service’s
10 No. 19-2088
draft forest management plans because they were “merely
working drafts subject to revision”).
B
Our cases are foggy on the standard under which we re-
view a district court’s determination at summary judgment
that a particular FOIA exemption authorized the withholding
of a document. In some cases, we have said that we review for
clear error because the procedural quirks of FOIA litigation
(in which the non-moving party often knows little about the
requested documents) require extra deference to district
courts. See, e.g., Enviro Tech, 371 F.3d at 374 (applying clear
error review); see also Rubman, 800 F.3d at 388 (echoing much
the same reasoning to support a deferential review). Yet in
other cases we found no reason to depart from the de novo
standard of review that ordinarily applies when reviewing
summary judgment decisions. See, e.g., Matter of Wade, 969
F.2d 241, 245 (7th Cir. 1992). We are not alone in recognizing
this lack of clarity. See Higgs v. U.S. Park Police, 933 F.3d 897,
903 (7th Cir. 2019) (noting a lack of consensus among the cir-
cuits on the standard of review applicable in FOIA cases).
We need not settle the question, for this appeal presents
neither disputed facts nor any of the special considerations
sometimes present in FOIA litigation. See Rubman, 800 F.3d at
388–89. The district court required from DOJ a detailed log of
the documents withheld, which provides all the factual con-
text necessary to decide the legal question on appeal: whether
Exemption 5 authorized the withholding of the documents
itemized on its Vaughn index. So we proceed de novo by taking
a fresh look at whether DOJ carried its burden to justify with-
holding the documents on the basis of the deliberative process
privilege.
No. 19-2088 11
The district court got it exactly right in answering yes. In-
deed, the challenged documents are paradigmatic examples
of records embodying deliberative communications. Recall
what NIJC sought—all communications to and from the At-
torney General or the Office of the Attorney General discuss-
ing the pros and cons of certifying a case for decision, com-
menting on different lines of reasoning supporting a particu-
lar decisional path, and offering suggestions on draft opin-
ions. The documents, in short, embody precisely the type of
legal and policy discussions and exchanges of ideas at the
heart of the deliberative process privilege. Exemption 5 exists
to authorize DOJ’s withholding of these documents from pub-
lic disclosure.
NIJC does not dispute that the documents fall within the
ambit of the deliberative process privilege. It instead renews
the invitation it extended to the district court to view the doc-
uments as embodying both pre-decisional discussions and ex
parte communications, and to conclude that the presence of
the latter removes the records from the protection otherwise
conferred by Exemption 5. The DOJ attorneys from the Office
of Immigration Litigation and the Office of the Solicitor Gen-
eral, NIJC reasons, may ultimately serve as opposing counsel
if the noncitizen does not prevail before the BIA and then ap-
peals to a federal court. Because of this arrangement, NIJC
posits, the attorneys might “attempt to advance an adverse in-
terest before the Attorney General” during the certification
decision-making process—a reality that could result in a dis-
advantage to a noncitizen who may later face the same DOJ
attorney in court proceedings.
NIJC’s position misses the mark. At the time that the At-
torney General certifies a case and chooses to consult with
12 No. 19-2088
attorneys in DOJ’s Office of Immigration Litigation or Office
of the Solicitor General, no litigation is pending in any federal
court. The removal proceeding is ongoing solely within DOJ,
awaiting a decision by the Attorney General. In no way are
the attorneys—at that point in the multi-step process that can
result in an immigrant’s removal—advising and assisting the
Attorney General adverse to the noncitizen. Attorneys assist-
ing an adjudicator do not engage in ex parte communications
when performing their duties.
NIJC sees this reasoning as artificial and unduly formalis-
tic because Office of Immigration Litigation and Solicitor Gen-
eral attorneys cannot be neutral advisors one minute and ad-
versarial litigators the next. “More often than not,” NIJC tells
us, “when an Attorney General certifies a BIA decision for re-
view, the noncitizen loses, making it readily apparent that [at-
torneys from the Offices of Immigration Litigation and the So-
licitor General] would be adverse to the noncitizen going for-
ward.”
This argument fails on its terms, for NIJC recognizes that
DOJ attorneys become adversaries in removal proceedings
only when a dispute leaves the Department and moves to the
judicial branch. That is precisely what NIJC acknowledges
when it points to adversity “going forward.” And it is that ex-
act reality that confirms the district court was right to sustain
DOJ’s withholding of the challenged documents: at no point
do Office of Immigration Litigation or Solicitor General attor-
neys represent the Department in an adversarial proceeding
before the Attorney General. Put another way, the unfairness
that the ex parte communications doctrine seeks to prevent—
namely, that one party has the judge’s ear while his adversary
lacks the same opportunity, see Drobny v. Comm’r of Internal
No. 19-2088 13
Revenue, 113 F.3d 670, 670 (7th Cir. 1997)—does not apply
here.
Nor does NIJC offer any limiting principle. It falls flat to
insist this case presents concerns unique in the immigration
context. Today’s administrative state is no small enterprise.
Nor is DOJ alone in Washington in exercising rulemaking,
enforcement, and adjudicatory authority to fulfill
congressionally-mandated responsibilities. See Martin v.
Occupational Safety & Health Review Commʹn, 499 U.S. 144, 151
(1991); see also RICHARD J. PIERCE, JR. & KRISTIN E. HICKMAN,
ADMINISTRATIVE LAW TREATISE § 1.1 (6th ed.) (recognizing the
expanse of today’s administrative state and underscoring the
broad range of responsibilities and decisions committed to
administrative agencies).
We see no principled way to decide today’s case in NIJC’s
favor and not undermine the confidentiality on which sound
decision-making depends within any number of other agen-
cies and departments. It is commonplace for agency and de-
partment lawyers to advise policymakers on specific matters
and later to provide litigation advice when the same matter
finds its way into court in some way, shape, or form. NIJC has
offered nothing to assuage this concern, and indeed its com-
plete silence on the point speaks volumes.
For these reasons, we AFFIRM.