Hall & Associates v. EPA ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2019 Decided April 21, 2020
No. 18-5241
HALL & ASSOCIATES, FOIA REQUESTER,
APPELLANT
v.
ENVIRONMENTAL PROTECTION AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01055)
John C. Hall argued the cause and filed the briefs for
appellant.
Laura Myron, U.S. Department of Justice, argued the
cause for appellee. On the brief were Jessie K. Liu, U.S.
Attorney at the time the brief was filed, H. Thomas Bryon, III,
Attorney, U.S. Department of Justice, Civil Division,
Appellate Staff, and Rachel F. Homer, Attorney at the time the
brief was filed, U.S. Department of Justice, Civil Division,
Appellate Staff. Dana Kaersvang, U.S. Department of Justice,
entered an appearance.
2
Before: HENDERSON, GRIFFITH, and MILLETT, Circuit
Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Hall & Associates (“Hall”)
sought certain records under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, from the Environmental Protection
Agency. The records related to the EPA’s purported adoption
of a “nonacquiescence decision”—that is, a determination to
not follow a specific court of appeals’ judgment in cases arising
outside of that circuit. The judgment at issue is that of the
United States Court of Appeals for the Eighth Circuit in Iowa
League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013).
On November 19, 2013, the EPA issued a press statement
advising the public that (i) Iowa League of Cities was legally
binding within the Eighth Circuit, and (ii) outside of that
circuit, the EPA would continue to apply the regulatory
interpretations vacated by the Eighth Circuit’s judgment. The
EPA does not contest on appeal that this position amounted to
a nonacquiescence decision.
The central dispute in this appeal is one of timing. Did the
EPA settle on its nonacquiescence position at the time of that
press statement on November 19, 2013, or in the days leading
up to it? Or even earlier? The answer to the timing question
will determine whether documents regarding that
nonacquiescence decision—all but one of which were created
between November 14, 2013 and November 18, 2013—are
predecisional and, as such, may qualify for withholding under
the EPA’s deliberative process privilege.
Because the date on which the EPA reached a final
decision to not acquiesce remains a genuine issue of disputed
material fact, we vacate the district court’s grant of summary
3
judgment in favor of the EPA and remand for further
proceedings.
I
A
Congress enacted FOIA “to pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny.” Bartko v. Department of Justice, 898 F.3d 51,
61 (D.C. Cir. 2018) (quoting Citizens for Responsibility &
Ethics in Washington v. Department of Justice, 746 F.3d 1082,
1088 (D.C. Cir. 2014)). By empowering individuals to obtain
copies of agency records just by the asking, FOIA protects the
basic right of the public “to be informed about what their
government is up to.” Competitive Enter. Inst. v. Office of
Science & Tech. Policy, 827 F.3d 145, 150 (D.C. Cir. 2016)
(quoting Department of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 773 (1989)).
That said, FOIA does not pursue transparency at all costs.
See Bartko, 898 F.3d at 61–62. Congress recognized that
“legitimate governmental and private interests could be harmed
by release of certain types of information,” and so attempted to
“balance the public’s need for access to official information
with the Government’s [legitimate] need for confidentiality.”
AquAlliance v. United States Bureau of Reclamation, 856 F.3d
101, 102–103 (D.C. Cir. 2017) (formatting modified). To that
end, Congress exempted nine categories of records from
FOIA’s general requirement of disclosure. See 5 U.S.C.
§ 552(b)(1)–(9). But even when an exemption applies, the
agency must disclose “[a]ny reasonably segregable portion of
a record,” the “amount of information deleted, and the
exemption under which the deletion is made.” Id. § 552(b).
 4
This case involves Exemption 5, which allows agencies to
withhold from disclosure records that are
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, provided that the deliberative process
privilege shall not apply to records created 25
years or more before the date on which the
records were requested[.]
5 U.S.C. § 552(b)(5).
Under Exemption 5, agencies generally can withhold
materials “normally privileged in the civil discovery context.”
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).
That includes materials that fall under an agency’s deliberative
process or attorney-client privilege. See Coastal States Gas
Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir.
1980). The deliberative process privilege “protects
government documents that are both [i] predecisional and [ii]
deliberative” in nature. Judicial Watch, Inc. v. Department of
Defense, 847 F.3d 735, 739 (D.C. Cir. 2017) (formatting
modified). In that way, the privilege “reflects the
commonsense notion that agencies craft better rules when their
employees can spell out in writing the pitfalls as well as
strengths of policy options, coupled with the understanding that
employees would be chilled from such rigorous deliberation if
they feared it might become public.” Id.
B
Hall submitted a FOIA request to the EPA on November
13, 2014. The request sought certain records pertaining to the
EPA’s purported decision to not follow outside of the Eighth
5
Circuit that court’s judgment in Iowa League of Cities v. EPA,
711 F.3d 844 (8th Cir. 2013).
In Iowa League of Cities, the Eighth Circuit vacated two
EPA rules regulating water treatment processes at municipally
owned sewer systems. See Iowa League of Cities, 711 F.3d at
854, 878.
By October 8, 2013, the EPA had forgone legal avenues to
challenge that decision. The EPA’s petition for rehearing en
banc was denied on July 10, 2013. Iowa League of Cities v.
EPA, No. 11-3412, 2013 U.S. App. LEXIS 14034 (8th Cir. July
10, 2013). The deadline for filing a petition for a writ of
certiorari was October 8, 2013. See 28 U.S.C. § 2101(c); see
also SUP. CT. R. 13. No petition was ever filed. 1 Instead,
“[b]eginning in 2013, EPA made statements indicating that it
would not acquiesce in or follow the Eighth Circuit’s decision
outside of that circuit.” Center for Regulatory Reasonableness
v. EPA, 849 F.3d 453, 454 (D.C. Cir. 2017).
As evidence that the EPA likely had records of a decision
not to acquiesce in Iowa League of Cities, Hall’s November
2014 FOIA request cited trade press publications and reports
of the National Association of Clean Water Administrators
(“Water Administrators Association”) describing public
statements by two EPA officials. Specifically, at a November
20–22, 2013 meeting of the Water Administrators Association,
the EPA’s then Acting Assistant Administrator for Water,
Nancy Stoner, was reported to have stated that Iowa League of
Cities was “not binding” outside of the Eighth Circuit, and that
the EPA would look “on a case-by-case [basis] at situations in
1
Nor did the EPA seek an extension of the time to file a
certiorari petition. See 28 U.S.C. § 2101(c) (allowing a Justice of the
Supreme Court to grant an extension of up to sixty days for good
cause shown); see also SUP. CT. R. 13 (same).
6
particular communities” outside of that circuit to determine
whether to enforce the vacated EPA rules. J.A. 73–74, 159,
273. Then, at the National Water Policy Forum & Fly-In on
April 9, 2014, Stoner and Mark Pollins, Director of the Water
Enforcement Division in the EPA’s Office of Civil
Enforcement, were said to have reiterated the EPA’s “position
that Iowa League of Cities is not binding * * * outside of the
[Eighth] Circuit” and that it “would continue to apply the
[vacated rules] outside of that area.” J.A. 74.
Against that backdrop, Hall’s FOIA request sought from
the EPA:
1. Any EPA records which discuss whether or
not Ms. Stoner’s November 2013 statement
was accurately reported in the trade press;
2. Any talking points and/or other materials
prepared for Ms. Stoner and/or Mr. Pollins
in advance of their presentations at either of
the above-referenced events or used by
them at the events;
3. Any presentation materials EPA distributed
as part of the aforementioned presentations;
4. Any records that either Ms. Stoner or Mr.
Pollins created as part of their respective
presentations; and
5. Any records that either Ms. Stoner or Mr.
Pollins created in preparation for their
respective presentations.
J.A. 74. Hall subsequently clarified that the request pertained
“only to documents mentioning EPA’s thoughts on how the
Agency would be proceeding post-[Iowa League of Cities]
decision.” J.A. 78.
7
The EPA responded to Hall’s revised FOIA request with
ten responsive documents.
Document 1 is a November 15, 2013 email meeting invite
entitled “Iowa League of Cities.” J.A. 172. The meeting invite
was sent from Stoner to several high-level managers in the
Office of General Counsel and Office of Water, including
Steven Neugeboren, Associate General Counsel of the Water
Law Office in the Office of General Counsel.
Document 1(a) is a three-page draft of talking points that
was attached to that meeting invite. Like Document 1, it was
created on November 15, 2013. The talking points were
authored by Kevin Weiss, a staff engineer in the Water Permits
Division of the Office of Wastewater Management within the
Office of Water, for Weiss’s coworkers and superiors. They
discuss Iowa League of Cities, potential “programmatic
activities [for the EPA], and potential communication options”
regarding the Eighth Circuit’s decision. J.A. 159.
Document 1(b), a five-page draft memorandum discussing
the same subjects as Document 1(a), was also attached to the
meeting invite and prepared by Weiss on November 15, 2013.
Document 2 is a November 14, 2013 email entitled: “RE:
IA League of Cities – deliberative process; atty client.” J.A.
162–163. It was sent from Stoner to Neugeboren and several
other EPA officials, including Weiss.
Document 3 is a November 15, 2013 email sent by
Neugeboren responding to the Document 2 email.
Document 4 is a two-email thread from November 18,
2013, involving Weiss, Deborah Nagle (Director of the Water
Permits Division), and Connie Bosma (Chief of the Municipal
Branch within the Water Permits Division). In the first email,
8
sent from Nagle to Bosma, Nagle stated that she was on her
way to the Water Administrators Association seminar and
knew Bosma had previously “armed [Stoner] with talking
points on how [the EPA] intend[ed] to apply the [Iowa League
of Cities] decision.” J.A. 375. Nagle asked Bosma to forward
her the talking points, “[j]ust in case the topic comes up” at the
conference. J.A. 375.
The second email, sent that same day from Weiss to Nagle,
attaches “the talking points [Weiss] gave to Nancy Stoner.”
J.A. 166–167, 375. Those talking points constitute
Document 4(a) and are a later version of the Document 1(a)
draft talking points.
Also attached to that second email is Document 4(b), a
four-page document prepared by Weiss in November 2010.
Document 4(b) discusses potential regulatory approaches on
the part of the EPA to the matters governed by the two rules
that the Eighth Circuit later invalidated. Document 4(b) is the
only record produced by the EPA in response to Hall’s FOIA
request that was not created in November 2013.
Document 5 is a six-email thread involving Stoner,
Neugeboren, other EPA officials, and Hall. The thread begins
with an email from Hall to Neugeboren on November 15, 2013,
in which Hall states its understanding “that EPA informed the
public and several states that the [Iowa League of Cities]
decision does not apply outside of the [Eighth] Circuit,” and
asks Neugeboren “to confirm or deny that EPA Headquarters
has reached a determination on this issue since * * * it was
[Neugeboren] that made the announcement[.]” J.A. 381–382.
Neugeboren forwarded the message to various EPA officials,
including Stoner, and confirmed (internally) that he had
publicly said “the decision is [b]inding in the [Eighth] Circuit
9
and that its implications outside are being considered by the
agency.” J.A. 188–189.
Finally, Document 6 is a November 26, 2013 email from a
staff attorney advisor within the Water Enforcement Division
to various EPA officials. The email forwards a Bloomberg
BNA article reporting that the EPA would apply Iowa League
of Cities “on a case-by-case basis” outside of the Eighth
Circuit. J.A. 170–171, 383. The staff attorney advisor states
in the email his understanding that the EPA would “not apply
[Iowa League of Cities] at all outside the Eighth Circuit[.]”
J.A. 383 (emphasis added).
Of these ten responsive documents, the EPA initially
released in full to Hall only Document 1—the November 15,
2013 email invite. The EPA withheld Documents 1(a), 1(b), 2,
3, 4(a), and 4(b) in full. And it withheld portions of Documents
4, 5, and 6.
The EPA invoked Exemption 5 to justify all of the
withholdings. In particular, the EPA asserted that all of the
withheld material fell under the deliberative process privilege
because it was both “predecisional and deliberative” in nature.
J.A. 97, 106. The EPA further claimed that some of the
withheld material also fell within the attorney-client privilege
because it contained “confidential communications between
[the EPA] and its attorney relating to a legal matter for which
[the EPA] has sought professional advice.” J.A. 97, 106.
On Hall’s administrative appeal, the EPA narrowed the
scope of records for which it claimed attorney-client privilege.
But it reaffirmed its view that all nine withheld records
qualified for the deliberative process privilege. Nonetheless,
because four of the fully withheld documents (Documents 1(a),
1(b), 4(a), 4(b)) and one of the partially withheld documents
(Document 6) each contained “some reasonably segregable
10
information,” the EPA ordered that new redacted versions of
those five documents be provided to Hall. J.A. 106–107.
C
Hall then sought judicial review of the withholdings by
filing this suit in the United States District Court for the District
of Columbia. See 5 U.S.C. § 552(a)(4)(B).
Hall’s single-count complaint alleges that the EPA
improperly invoked the attorney-client and deliberative
process privileges to justify its withholdings. The complaint
asserts that the records were ineligible for withholding under
the deliberative process privilege because they were not
predecisional: The EPA had “clearly rendered a final decision
regarding the national applicability of the [Iowa League of
Cities] decision” by the time the records were created. J.A. 22.
The EPA filed with the district court a Vaughn Index
explaining its reasoning for each withholding. 2 It also
submitted several declarations by Nagle insisting that the EPA
“has not, to date, decided whether and to what extent to follow
[Iowa League of Cities] outside the Eighth Circuit, saving those
questions for permitting or other case-specific contexts.” J.A.
319. For that reason, Nagle concluded that, at the time the
documents at issue were created, the EPA still “had not
determined whether and to what extent to apply the decision
outside the Eighth Circuit and instead was evaluating any
2
A Vaughn Index “consists of a detailed affidavit, the purpose
of which is to permit the court system effectively and efficiently to
evaluate the factual nature of disputed information” in a FOIA case.
John Doe Agency v. John Doe Corp., 493 U.S. 146, 149 n.2 (1989)
(formatting modified); see also Vaughn v. Rosen, 484 F.2d 820, 826–
828 (D.C. Cir. 1973).
11
issues related to [Iowa League of Cities] on a facility-specific
basis.” J.A. 319–320.
Both parties moved for summary judgment. But before
those motions were resolved, Hall moved to amend its
complaint to add a new challenge under 5 U.S.C. § 552(a)(3)
to the adequacy of the EPA’s initial search for relevant
documents. Hall also moved (i) to conduct additional
discovery into “several material facts” that remained “in
dispute,” including “the timing and nature of EPA’s
nonacquiescence decision,” and (ii) to strike one of Nagle’s
declarations for including assertedly false information, namely,
her representations that the EPA had not yet made a decision
about whether it would follow Iowa League of Cities outside of
the Eighth Circuit. Memorandum of Points and Authorities at
26 & n.24, 40, Hall & Assocs. v. EPA, No. 1:15-cv-01055-KBJ
(Aug. 12, 2016), ECF No. 47-1.
After reviewing the materials in camera, the district court
granted in part and denied in part each of the parties’ cross-
motions for summary judgment.
The district court began by rejecting the EPA’s contention
that its current position—that it would decide whether to apply
Iowa League of Cities on a case-by-case basis outside of the
Eighth Circuit—did not amount to a nonacquiescence decision.
The court reasoned that, by reserving the “right to proceed
‘consistent with the Agency’s existing interpretation’ outside
of the Eighth Circuit on a case-by-case basis,” the EPA had
“necessarily * * * refused to commit to applying Iowa League
of Cities as its policy in all jurisdictions,” and that is all that it
takes for an agency to adopt a policy of “intercircuit
nonacquiescence[.]” J.A. 47 (formatting modified).
The district court then held, as a matter of law, that “the
EPA made the nonacquiescence decision at issue here on
12
November 19, 2013,” J.A. 43 (formatting modified), the date
that the EPA issued a press release (known as the “Desk
Statement”) that read:
The Eighth Circuit’s interpretation in Iowa
League of Cities v EPA of EPA’s regulations
relating to blending and bypass is legally
binding within the Eighth Circuit. Outside of
the Eighth Circuit, EPA will continue to work
with States and communities with the goal of
finding solutions that protect public health and
the environment while recognizing economic
constraints and feasibility concerns, consistent
with the agency’s existing interpretation of the
regulations.
J.A. 45–46 (district court analysis); J.A. 194 (Desk Statement).
The Desk Statement, the district court concluded, “amounted
to a formal announcement of nonacquiescence,
notwithstanding the EPA’s current protestations.” J.A. 46.
In so holding, the district court rejected Hall’s argument
that the record supported at least a reasonable inference that the
EPA actually adopted its nonacquiescence position sometime
before it issued the Desk Statement. As support for its
argument, Hall had pointed to evidence of both internal and
public statements by EPA officials that predated the November
19, 2013 Desk Statement. For example, Neugeboren stated
publicly on November 13, 2013 (as referenced in Document 5):
“It is EPA[’s] current contention that the [Iowa League of
Cities] ruling will only be binding to the [Eighth] Circuit
States.” J.A. 240, 381–382. Hall also pointed to an internal
August 2013 “Options Memo” of the EPA outlining the pros
and cons of petitioning or not petitioning for certiorari from the
Eighth Circuit’s decision. J.A. 197–199. The only “Pro”
13
identified in the Options Memo for not seeking certiorari was
that doing so would leave the EPA free to “formally or
informally acquiesce and thereby limit the effect of the
decision to the Eighth Circuit.” J.A. 199. As of October 8,
2013, the government had decided not to seek certiorari.
Notwithstanding those materials, the district court held
that there was no genuine issue of material fact concerning the
timing of the EPA’s nonacquiescence decision, reasoning that
the decision definitively was reached on November 19, 2013.
The court reasoned that (i) Neugeboren’s earlier statement, on
which Hall relied, “can reasonably be interpreted as the mere
recitation of a known fact: a decision of the Eighth Circuit
Court of Appeals does not ‘bind’ the EPA outside of the Eighth
Circuit,” and (ii) “an agency’s decision to seek certiorari stands
completely apart from a nonacquiescence determination.” J.A.
48–49.
Given its factual finding that the EPA’s nonacquiescence
decision was not adopted until November 19th, the district
court ruled that all of the withheld material except Document 6
(prepared November 26, 2013) was predecisional and so met
the first eligibility requirement for withholding under the
deliberative process privilege.
Next, after reviewing the other withheld documents that
were created before November 19th, the district court
concluded that everything but Document 4 and small portions
of Documents 1(a) and 1(b) was deliberative in nature and thus
properly withheld under Exemption 5. Because the EPA did
not separately assert attorney-client privilege over Documents
1(a), 4, and 6, the district court ordered the release of
Documents 4 and 6 and the portions of Document 1(a) that
were not deliberative. As for the portion of Document 1(b) that
was not deliberative in nature, the district court ordered it
14
released after concluding that it also did not qualify for the
attorney-client privilege.
To sum it all up, the district court ordered the EPA to
release Documents 4 and 6 in full along with portions of
Documents 1(a) and 1(b). Conversely, it agreed with the EPA
that the deliberative process privilege justified withholding all
or portions of Documents 1(a), 1(b), 2, 3, 4(a), 4(b), and 5.
The district court also denied Hall’s motion to amend its
complaint on the ground that Hall had failed to exhaust its
claim of an inadequate search before the EPA. And the court
denied as “[m]eritless” Hall’s motions for discovery and to
strike the relevant Nagle Declaration. J.A. 64. The district
court reasoned that both motions “appear[ed] to be motivated
by [Hall]’s apparent belief that the EPA has responded to
[Hall]’s FOIA request in bad faith and has repeatedly lied to
this Court * * * to shield its nonacquiescence policy from
judicial review,” and then concluded that the record did not
support such an assertion. J.A. 64–67. Rather, the EPA had
“simply failed to appreciate that the sentiment conveyed in the
Desk Statement” amounted to a nonacquiescence
determination, which evidenced only an “earnestly held but
mistaken view of the law[.]” J.A. 65.
Hall appealed; the EPA did not. The EPA has released the
documents and portions of documents ordered to be disclosed
by the district court.
II
The district court exercised subject matter jurisdiction
under 5 U.S.C. § 552(a)(4)(B). This court’s jurisdiction arises
under 28 U.S.C. § 1291.
15
We review de novo a district court’s decision on summary
judgment in a FOIA case. Sussman v. United States Marshals
Serv., 494 F.3d 1106, 1111–1112 (D.C. Cir. 2007). Summary
judgment is appropriate only “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
District courts have “broad discretion to manage the scope
of discovery” in FOIA cases. Safecard Servs., Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991). We will overturn the
exercise of that discretion “only in unusual circumstances.” Id.
We also review a district court’s ruling on a motion to strike
only for an abuse of discretion. See Jackson v. Finnegan,
Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150
(D.C. Cir. 1996).
Finally, leave to amend a complaint should be freely given
when justice so requires. FED. R. CIV. P. 15(a)(2). “We review
a district court’s denial of a motion to amend a complaint for
abuse of discretion.” Williams v. Lew, 819 F.3d 466, 471 (D.C.
Cir. 2016). It is an abuse of discretion to deny leave to amend
without “sufficient reason, such as * * * futility of
amendment.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.
Cir. 1996) (formatting modified). Amendment is futile if the
amended complaint would not withstand a motion to dismiss.
Hettinga v. United States, 677 F.3d 471, 480 (D.C. Cir. 2012).
A complaint will, in turn, survive a motion to dismiss if it
contains “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted).
16
III
A
1
The indispensable predicate for a grant of summary
judgment is that there be no genuine dispute over a question of
material fact. See Solomon v. Vilsack, 763 F.3d 1, 9 (D.C. Cir.
2014) (“Our task is not to determine the truth of the matter, but
to decide only whether there is a genuine issue for trial.”)
(formatting modified). Even then, the law must dictate a single
outcome after taking all of the facts and reasonable inferences
from them in the light most favorable to the non-movant—here,
Hall. See Al-Saffy v. Vilsack, 827 F.3d 85, 92 (D.C. Cir. 2016)
(“If, on the other hand, any material facts are at issue or, though
undisputed, are susceptible to divergent inferences, summary
judgment must be denied.”); see also Steele v. Mattis, 899 F.3d
943, 947 (D.C. Cir. 2018) (“[S]ummary judgment is proper
only when, viewing the evidence in the light most favorable to
[the non-moving party] and drawing all reasonable inferences
accordingly, no reasonable jury could find in [the non-moving
party’s] favor.”) (formatting modified).
Said another way, if any reasonable view of the record
would permit resolution of a factual dispute in favor of the non-
movant, and that fact is material to the outcome, summary
judgment must be denied. FOIA cases are no exception. See,
e.g., Evans v. Federal Bureau of Prisons, 951 F.3d 578, 584,
586–588 (D.C. Cir. 2020).
2
For purposes of this appeal, there is no dispute that the
EPA’s position in the Desk Statement—that (i) Iowa League of
Cities was “legally binding within the Eighth Circuit,” and (ii)
17
outside of that circuit, the EPA would “continue to work with
States and communities * * * consistent with the Agency’s
existing interpretation of the regulations”—is a
nonacquiescence decision. J.A. 45; EPA Br. 9 n.3.
The critical question is only one of timing: Whether the
EPA, as a matter of law, carried its burden of establishing that
its nonacquiescence decision was reached only after all of the
documents at issue here were created. See Assassination
Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir.
2003) (The agency “bears the burden of establishing the
applicability of [a] claimed [FOIA] exemption.”); see also 5
U.S.C. § 552(a)(4)(B) (“[T]he burden is on the agency to
sustain its action.”). That factual question of timing is
material—actually, dispositive—in deciding (i) which of the
EPA documents that Hall seeks were created prior to the EPA’s
nonacquiescence decision, and so satisfy the first requirement
for withholding under the deliberative process privilege, and
(ii) which were generated after the decision was made, and so
cannot be withheld under that privilege.
The district court misstepped in this case because it
granted summary judgment to the EPA by resolving against
Hall that quintessentially factual dispute concerning the date on
which the nonacquiescence position was first adopted. Hall’s
proffered evidence, the EPA’s own submissions (including its
Vaughn Index and the three Nagle declarations), and our own
in camera review of the withheld materials offer up a buffet of
different dates by which the nonacquiescence decision might
have been adopted. Those dates include, but are not confined
to, the time of the Desk Statement. The summary judgment
record simply does not dictate an answer to that factual
question.
18
For starters, take the EPA’s own submissions in district
court. There the EPA argued that no decision about
acquiescence had ever been made, meaning that every
document was predecisional. The EPA’s Vaughn Index insists
that the Agency “has not, to date, decided whether and to what
extent to follow the Iowa League of Cities’ decision outside the
Eight[h] Circuit, saving those questions for permitting or other
case-specific contexts.” J.A. 160. Nagle’s first declaration
makes that same point in identical terms. The EPA, in fact,
admits that it never took the position in district court that
November 19th was the date that it made “a nonacquiescence
determination (because the EPA argued that it never made a
nonacquiescence decision)[.]” EPA Br. 16 (formatting
modified). So not only did no party argue in district court that
November 19th was the date of nonacquiescence—both parties
argued that it was not. Given that, nothing in the EPA’s
submissions pointed to a date certain for when it finally settled
on a nonacquiescence position, other than “not yet.”
Nevertheless, the EPA defends the district court’s grant of
summary judgment on the ground that the record as a whole
conclusively establishes that the position communicated in the
Desk Statement was not “reached” before November 19, 2013.
EPA Br. 17.
That is simply wrong. As mentioned, the EPA submitted
little to no evidence speaking directly to the timing question,
and no direct evidence at all that the date was November 19th.
And Hall, for its part, has identified sufficient evidence to
support a reasonable inference that the EPA reached its
nonacquiescence position sometime before November 19th.
First, on November 13th—six days before the Desk
Statement—EPA’s Associate General Counsel Neugeboren
publicly stated that the EPA’s “current contention [is] that the
19
Court ruling will only be binding to the [Eighth] Circuit
States,” and that “States will have to deal with the situation on
a case-by-case basis.” J.A. 240. Neugeboren then matched the
EPA’s actions to his words, elaborating that the Agency would
be “reviewing permits on a case-by-case basis” outside of the
Eighth Circuit. J.A. 240. Because the EPA now accepts that a
policy in which it “refuse[s] to commit to applying Iowa
League of Cities as its policy in all jurisdictions * * * is all that
intercircuit nonacquiescence requires,” J.A. 47, the
Neugeboren statement raises a material factual dispute about
whether the date of nonacquiescence was as early as November
13, 2013—before all but one of the withheld documents were
created.
To be sure, as the district court noted, Neugeboren
commented later in his remarks that the EPA did not “have
everything figured out yet” and would “be looking for a more
holistic approach to managing the utility in question.” J.A.
240. Based on those caveats, the district court concluded that
Neugeboren’s statement “can reasonably be interpreted as the
mere recitation of a known fact: a decision of the Eighth
Circuit * * * does not ‘bind’ the EPA outside of the Eighth
Circuit.” J.A. 49.
Sure, the document could be read that way. But it does not
have to be. It could just as reasonably be read to support Hall.
And it is Hall—not the EPA—who is entitled at this stage to
all reasonable inferences from the evidence. When
Neugeboren’s statement is read in context, and in the light most
favorable to Hall, it was just as likely that Neugeboren was
referring to ironing out the details of the EPA’s implementation
of its nonacquiescence decision, not its adoption. In fact, the
EPA included the same sorts of caveats in describing its
position three years later, after it had long since settled on not
acquiescing. See, e.g., J.A. 167 (Vaughn Index asserting that
20
the EPA “has not, to date, decided whether and to what extent
to follow [the] Iowa League of Cities decision outside the
Eight[h] Circuit, saving those questions for permitting or other
case-specific contexts”). So the EPA must agree that such
comments are entirely compatible with having already adopted
a nonacquiescence position. Given that, on the summary
judgment record before us, it is certainly reasonable to infer
from Neugeboren’s public statement that the nonacquiescence
position articulated in the Desk Statement was reached at least
a few days earlier.
Other documents in the record support a reasonable
inference that the nonacquiescence decision was reached still
earlier. In August 2013, when the EPA was considering
whether to seek certiorari, the internal Options Memo outlined
potential pros and cons of filing or not filing such a petition.
J.A. 197–199. The only “Pro” listed in the Options Memo for
not seeking certiorari was that the EPA would be free to
“formally or informally acquiesce and thereby limit the effect
of the decision to the Eighth Circuit.” J.A. 199. So it is also
reasonable to infer from the Options Memo that, when the EPA
declined to seek certiorari by the October 8, 2013 deadline, it
was because it had decided not to acquiesce.
Consistent with the district court’s analysis, the EPA
argues that a decision to seek certiorari is different from a
decision not to apply Iowa League of Cities outside of the
Eighth Circuit. EPA Br. 17. Fair enough. That the EPA
declined to seek certiorari by no means conclusively
establishes that it had decided by then not to acquiesce. But
again, an inference need not be the only possible interpretation
of the evidence to preclude summary judgment. All that is
needed is a reasonable inference. See Steele, 899 F.3d at 947.
Because the EPA specifically labeled the ability not to
acquiesce as the “Pro” for not seeking certiorari, it is
21
reasonable to infer that when it declined to seek certiorari it had
settled on exercising that prerogative. 3
At bottom, now that the EPA accepts the district court’s
legal holding that it made a nonacquiescence decision in
November 2013, the summary judgment record leaves
materially disputed and unanswered when exactly that decision
was made. Neither party below argued that November 19th
was the definitive date, and record evidence points to a variety
of possible answers. We hold only that, applying the summary
judgment standard, the EPA has not established as a matter of
indisputable fact that the definitive date of nonacquiescence
was November 19, 2013. Because the EPA did not meet its
burden of demonstrating conclusively that its nonacquiescence
determination postdates the creation of all of the still-withheld
documents, the district court erred in granting summary
judgment to the EPA.
3
Hall also points to an internal October 29, 2013 memorandum
(“Moving Forward Memo”) as raising a genuine issue of material
fact that the EPA had reached its nonacquiescence position at least
by that date. Hall Br. 29–31. After arguing that the Moving Forward
Memo does not establish such a genuine issue of material fact, the
EPA goes on to briefly assert that the memorandum is a privileged
document that is not even “properly part of the record in this case
and therefore should not be considered in this appeal.” EPA Br. 24.
The EPA voiced similar objections to the district court after Hall
introduced the memorandum into evidence. But the district court
was apparently unpersuaded, as it explicitly discussed the Moving
Forward Memo in resolving the summary judgment motions. See
J.A. 35. Nonetheless, because documents both parties agree are part
of the record establish a genuine and disputed issue of material fact,
we need not resolve the dispute over the Moving Forward Memo.
On remand, the district court can resolve any such claims of privilege
that the EPA may again raise.
22
B
Hall asks this court to go further and hold that the district
court erred in not entering summary judgment in its favor by
disallowing the deliberative process privilege. Hall Br. 18–19.
Hall reasons that, because the district court rejected the EPA’s
only justification for invoking that privilege—that is, that it had
“never rendered or communicated a nonacquiescence decision
to anyone at any time,” Hall Br. 18 (formatting modified)—the
district court had no choice but to grant summary judgment in
full in its favor.
But Hall overplays its hand. That position suffers from the
same factual indeterminacy about timing that infected the
district court’s entry of summary judgment for the EPA. That
the EPA erred in claiming a decisional date of “never” does
not, by itself, establish that all of the documents were
postdecisional. Again, the record is about as clear as mud on
when the EPA finally decided to not acquiesce. And while
each party sees its position in the mire, we see only a record
that does not conclusively establish whether the withheld
materials were created either before or after the EPA reached
its decision. Summary judgment does not work in either
direction on this dispute. 4
C
None of Hall’s other objections succeed.
First, Hall argues that the district court erred in denying its
motion to conduct additional discovery into “several material
4
Our vacatur of the district court’s summary judgment decision
moots Hall’s procedural objection under Rule 56(f) of the Federal
Rules of Civil Procedure to the district court’s sua sponte selection,
without advance notice, of a nonacquiescence date. Hall Br. 19–23.
23
facts” that remained “in dispute,” including “the timing and
nature of EPA’s nonacquiescence decision[.]” Memorandum
of Points and Authorities, supra, at 40; Hall Br. 35–39.
Because we vacate the district court’s grant of summary
judgment, we leave it to the district court to decide what steps
are necessary to resolve the case consistent with our opinion.
Second, Hall argues that the district court abused its
discretion in denying Hall’s motion to amend its complaint to
add a challenge to the adequacy of the EPA’s search for
responsive documents. Hall does not dispute that it failed to
administratively exhaust that claim as the law generally
requires. See, e.g., Bayala v. Department of Homeland Sec.,
827 F.3d 31, 35–36 (D.C. Cir. 2016) (discussing FOIA’s
exhaustion requirement).
Hall argues instead that the failure to exhaust is excused
because the potential inadequacy of the EPA’s search for
records first “arose during the litigation and not at the time of
FOIA denial[.]” Hall Br. 40. Specifically, Hall contends that
the EPA’s FOIA response “neither identified the existence of,
nor sought to withhold, the Desk Statement.” Id.
That is true, but beside the point. The EPA never
mentioned the Desk Statement in its FOIA response because
that document was not responsive to Hall’s narrow FOIA
request. That request sought only records regarding the
presentations made by (i) Stoner at the Water Administrators
Association seminar held November 20–22, 2013, and (ii)
Stoner and Pollins at the April 9, 2014 forum. The Desk
Statement fit neither of those bills. So Hall’s failure to exhaust
is fatal to its argument. 5
5
As it turns out, the EPA disclosed the Desk Statement to Hall
in response to a different FOIA request. J.A. 146, 148.
24
Third, Hall argues that the district court abused its
discretion in denying Hall’s motion to strike one of Nagle’s
declarations for wrongly denying that a nonacquiescence
decision had been made. Hall Br. 41–42. Not so. The district
court found that Nagle’s statements that no nonacquiescence
decision had been made reflected only “an earnestly held but
mistaken view of the law,” not a factual misrepresentation.
J.A. 65. That judgment was reasoned and well within the
district court’s discretion. Nothing in the law compels a district
court to strike an entire declaration that includes relevant
factual representations simply because the declaration also
contains genuinely believed, but mistaken conclusions of law.
IV
In conclusion, the district court erred in entering summary
judgment for the EPA. A genuine issue of material fact
remains as to when the EPA adopted its nonacquiescence
decision—whether before or on the date of the Desk Statement.
That factual dispute is critical to application of the deliberative
process privilege. For those reasons, we vacate the district
court’s grant of summary judgment to the EPA and remand for
further proceedings consistent with this opinion.
So ordered.