United Affiliates Corporation v. United States

In the United States Court of Federal Claims
No. 17-67 L
Filed: February 28, 2023
)
UNITED AFFILIATES CORPORATION and )
MINGO LOGAN COAL LLC, )
)
Plaintiffs, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
Kevin P. Holewinski, Jones Day, Washington, D.C., for Plaintiff United Affiliates Corporation.
Daniella Einik and Jon G. Heintz, of counsel.
Robert M. Rolfe, Hunton & Williams LLP, Richmond, VA, for Plaintiff Mingo Logan Coal LLC.
George P. Sibley, III, of counsel.
Joshua P. Wilson, U.S. Department of Justice, Environment and Natural Resources Division,
Natural Resources Section, Washington, D.C., with whom were Todd Kim, Assistant Attorney
General, Erika Norman and Hanna O’Keefe, of counsel, for the Defendant.
OPINION AND ORDER
Pending before the Court is the latest in a series of motions to compel the production of
documents that the Government is withholding under the deliberative process privilege. In the
last round of briefing, Plaintiffs argued that the Government could not, as a matter of law, assert
the deliberative process privilege in this case. The Court denied Plaintiffs’ motion, explained
that the Court must analyze the privilege issue on a “document-by-document” basis, and allowed
the Plaintiffs the opportunity to move to compel the production of “specific documents.”
Despite the Court’s order, the Plaintiffs have come back and seek the release of entire categories
of documents without addressing specific documents. Instead, the Plaintiffs rely exclusively on
the Government’s declarations asserting the privilege, but ignore the privilege logs, which appear
to provide information Plaintiffs claim is missing from the declarations. The Court is left unable
to conduct the required document-by-document analysis—there are no arguments about or
descriptions of specific documents. And because neither party has put the privilege logs before
the Court (other than for the one document Plaintiffs identify by Bates number), the Court cannot
even state what the documents are that Plaintiffs claim the Court should compel the Government
to produce. The Court will not speculate about the specific documents or their contents and,
therefore, must deny the Plaintiffs’ motion that fails to comply with this Court’s prior instruction.
That said, and despite the fact that the Court previously stated that there would be no further
argument regarding these privilege issues, the Court’s denial of Plaintiffs’ motion to compel is
without prejudice to Plaintiffs moving to compel the production of specific documents based on
the Government’s declarations and privilege logs, explaining why they have a strong need for
each document.
I. Background 1
Plaintiff United Affiliates owns the land and mineral rights associated with the Spruce
No. 1 mine in West Virginia. United Affiliates Corp. v. United States, 147 Fed. Cl. 412, 415-16
(2020). Mingo Logan entered a lease with United Affiliates to operate a coal mine known as the
Spruce No. 1 mine. Id. Following an approximately ten-year application process, which
included an extensive environmental impact study, the Government, acting through the U.S.
Army Corps of Engineers, granted Mingo Logan a permit in 2007 pursuant to § 404 of the Clean
Water Act that allowed it to discharge fill material from the Spruce No. 1 mine into nearby
streams. Id. Section 404(c) of the Clean Water Act, however, grants the Environmental
Protection Agency (“EPA”) authority to withdraw the issuance of a permit. 33 U.S.C. § 1344(c).
And in 2011, the EPA exercised its authority and withdrew the permit insofar as it allowed the
discharge of fill material into the Pigeonroost and Oldhouse Branch streams. Id. This lawsuit
followed.
Almost since discovery began, the parties have engaged in extensive motions practice, a
fair amount of which has been piecemeal and repetitive. As an example, the Plaintiffs filed a
motion to compel that challenged numerous privilege claims by the Government. ECF Nos. 69-
70. In that motion to compel, the Plaintiffs challenged the Government’s privilege assertions but
provided only “representative examples of th[e] deficienc[ies]” that they challenged. E.g., ECF
No. 70 at 19. At the time of the motion, the Government was already scheduled to issue revised
privilege logs the following week, which it did. United Affiliates Corp. v. United States, 154
Fed. Cl. 335, 340 (2021). Given that the revised privilege logs addressed the representative
examples of Plaintiffs’ alleged deficiencies, the Plaintiffs filed a supplemental memorandum in
support of their motion, which made the same arguments but provided new exemplars of the
alleged deficiencies. Id. By oral argument, the Government had already addressed these
exemplars as well. As the Court found, this “Whac-a-Mole discovery” was inefficient and would
not continue. Id. at 341. Thus, the Court recognized that the Plaintiffs would “soon file a third
motion to compel,” but that “there will not be a fourth.” Id. at 340 (emphasis in original).
This next round of briefing was to address procedural issues with the Government’s
assertion of the deliberative process privilege that this Court found with the initial declarations
provided by the Government. The Government has since provided new declarations, ECF Nos.
121-3 & 121-4, and this round of briefing challenging the Government’s assertion of the
deliberative process privilege followed.
II. Discussion
1
Because the facts of this case have been set forth in several prior opinions, the background here
is only that relevant to the resolution of this motion.
2
The deliberative process privilege is an executive privilege that “protect[s] agencies from
being ‘forced to operate in a fishbowl.’” United States Fish & Wildlife Serv. v. Sierra Club, Inc.,
141 S. Ct. 777, 785 (2021) (quoting EPA v. Mink, 410 U.S. 73, 87 (1973)). “The privilege is
rooted in ‘the obvious realization that officials will not communicate candidly among themselves
if each remark is a potential item of discovery and front page news.’” Id. (quoting Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001)); see also Kaiser
Aluminum & Chem. Corp. v. United States, 141 Ct. Cl. 38, 49 (1958). The deliberative process
privilege shields “documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated.”
Sierra Club, 141 S. Ct. at 785 (internal quotation marks omitted) (quoting N.L.R.B. v. Sears, 421
U.S. 132, 150 (1975)). In other words, the privilege “protects from disclosure documents
generated during an agency’s deliberations about a policy, as opposed to documents that embody
or explain a policy that the agency adopts.” Id. at 783. But documents containing investigative
information or facts without revealing the Government’s decision-making processes are
discoverable and not protected under the deliberative process privilege. Confidential Informant
59-05071 v. United States, 108 Fed. Cl. 121, 131 (2012) (collecting cases). “Like all evidentiary
privileges that derogate a court’s inherent power to compel the production of relevant evidence,
the deliberative process privilege is narrowly construed.” Pac. Gas & Elec. Co. v. United States
(“Pac. Gas I”), 70 Fed. Cl. 128, 133, modified on reconsideration, 71 Fed. Cl. 205 (2006)
(quoting Greenpeace v. Nat’l Marine Fisheries Serv., 198 F.R.D. 540, 543 (W.D. Wash. 2000)).
The Plaintiffs’ prior motion to compel the production of all documents the Government
withheld under the deliberative process privilege argued that the Government could not assert the
privilege in a regulatory takings case. The Court rejected that argument because the Federal
Circuit has made clear that the Government may, in fact, assert the privilege in a regulatory
takings case. United Affiliates, 154 Fed. Cl. at 342-43. More importantly, the Court made clear
to the parties that any challenge to the Government’s withholding of documents on privilege
grounds would need to challenge “specific documents” because the Federal Circuit requires this
Court to perform a document-by-document analysis when assessing the privilege claim. Id. at
343 (emphasis in original). This Court relied upon the clear pronouncement of the Circuit that:
In deciding whether to compel discovery in the face of asserted
executive privileges, the trial court is tasked with addressing, on a
document-by-document basis, (1) whether the government has
established that the invoked privilege applies; (2) how extensive
the harm to the deliberative process would be if the documents
were disclosed; and (3) whether the benefits of disclosure will, on
balance, outweigh the harms.
In re United States, 678 F. App’x 981, 987 (Fed. Cir. 2017) (footnote omitted).
The Circuit also explains “that a party seeking information ‘must make a strong showing
of need’ to breach executive privilege and that the information sought must be central to the
case.” Id. at 989 (quoting Zenith Radio Corp. v. United States, 764 F.2d 1577, 1580 (Fed. Cir.
1985)). During oral argument, Plaintiffs countered that the “strong showing of need” language
from In re United States comes from a section discussing executive privilege generally and not
specifically the deliberative process privilege. ECF No. 132 at 152:22-153:8. While it is true
3
that In re United States uses “executive privileges” to refer to several privileges collectively, 678
Fed. App’x at 987 & n.1, the “strong showing of need” requirement comes from a section
dealing solely with the deliberative process privilege, id. at 989 (discussion section C.1 addresses
the “Deliberative Process Privilege”). Therefore, the Court will apply the In re United States
criteria to the Plaintiffs’ claims in this case. And to assess whether Plaintiffs have made a strong
showing of need, the Court weighs the factors identified in Dairyland Power Co-op v. United
States, 77 Fed. Cl. 330, 341-42 (2007).
The Plaintiffs’ motion does not allow the Court to perform a document-by-document
analysis because the Plaintiffs do not make document-specific arguments. In fact, the Court does
not even know the specifics about the disputed documents, only descriptions of groups of
documents from the Government’s declarations. Plaintiffs explain that because they do not have
the privileged documents themselves, they cannot argue the relevance of individual documents
and their motion “focuses on the representative subcategories of documents that the United
States has identified and described in its declarations, and the interests of justice require that the
Court resolve any close calls in the Plaintiffs’ favor.” ECF No. 121 at 9-10 (citing Judicial
Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006) (additional citation
omitted)). The problem with Plaintiffs’ argument is that it lacks any limiting principal—it is true
in every deliberative process case (indeed in every privilege dispute) that the moving party has
less information about the disputed documents than the withholding party. That alone cannot
justify foregoing the document-by-document analysis based on arguments about each document.
Not even Judicial Watch, upon which Plaintiffs rely, supports such a position. Rather
than require plaintiffs to challenge the Government’s privilege assertions generally and with no
information, Judicial Watch recognizes that the Vaughn index 2 both requires the Government to
carefully analyze the documents that it withholds and “enables the adversary system to operate
by giving the requester as much information as possible, on the basis of which he can present his
case to the trial court.” Judicial Watch, 449 F.3d at 146 (quoting Keys v. United States Dep’t of
Justice, 830 F.2d 337, 349 (D.C. Cir. 1987)). Here, the privilege log serves the same function as
the Vaughn index in the FOIA dispute in Judicial Watch. Therefore, the Court cannot agree that
Plaintiffs should be excused from making document-specific arguments based solely on the
Government’s declarations because they do not have as much information about the withheld
documents as the Government has. This is especially so in this case because the Plaintiffs have
neither challenged (indeed, they have not even mentioned) nor put before the Court the
Government’s privilege logs.
The Plaintiffs’ singular focus on the Government’s privilege declarations to the exclusion
of other information only demonstrates the problem. For example, Plaintiffs fault the
government declarations because, although they assert privilege over certain internal
communications, “they never explain which staff members [participated in the communications],
what kind of drafts [they shared], what kind of input [they provided], what kind of policy
decisions [were at issue], or the nature of the supposed chilling effect.” ECF No. 121 at 32. But
2
In litigation under the Freedom of Information Act, when the government withholds documents
from disclosure it lists them on a Vaughn index, which provides descriptive information about
each document like the privilege log in this case.
4
the Government provided answers to these issues in its privilege logs. As the Government
explains, the answers to these questions are set forth in the privilege logs and the Plaintiffs’
ignoring of those logs does not vitiate the assertion of the privilege. See ECF No. 127 at 37. To
make its point, the Government provided an exemplar of a document, US_SPRUCE0859501,
that is one of the documents in subcategory 3.7 that the Government is withholding on
deliberative process grounds. Id. To answer the Plaintiffs’ question of which staff members
participated in the communications, the privilege log identifies each of the senders, recipients,
and people copied on the series of emails. Id.; see also ECF No. 127-12. 3 Similarly, the
privilege log provides a description of the subject matter of the communications and the policy
the government officials were discussing, as well as the dates of the communications. ECF No.
127-12.
The Court cannot rely solely on the Government’s declarations asserting the privilege
because the Government also provided privilege logs with descriptions of each individual
document the Government withheld on privilege grounds. And “[a]gencies seeking to invoke the
deliberative process privilege commonly do so through a combination of privilege logs that
identify specific documents, and declarations from agency officials explaining what the
documents are and how they relate to the decisions.” N.L.R.B. v. Jackson Hosp. Corp., 257
F.R.D. 302, 309 (D.D.C. 2009) (citations omitted); cf. Pub. Emps. for Env’t Resp. v. United
States Environmental Protection Agency, No. 18-CV-2219 (BAH), 2021 WL 2515007, at *6
(D.D.C. June 18, 2021) (“An agency may prove the applicability of claimed [FOIA] exceptions
through a Vaughn index or supporting affidavits or declarations, or both . . . .”). The fact that
one must cross-reference the privilege log and the declaration does not render the Government’s
assertion of the privilege improper.
Plaintiffs also argue that the Government’s privilege declarations fail because they “do
not identify any specific harm and set forth only vague, conclusory assertions that do little more
than parrot the applicable legal standard.” ECF No. 121 at 28. The Government disagrees
because, according to it, the declarations provide the information the law requires and asserting
the same foreseeable harm to different categories of documents is permissible. ECF No. 127 at
25-26. There is simply no reason that the Government may not assert similar, or in some cases
the same, articulations of harm for different categories of documents. As a district court recently
concluded, the argument that “after using one reason for a particular category, [the government]
would be barred from using similar reasoning elsewhere” is “untenable.” Leopold v. United
States Dep’t of Just., No. 19-2796 (JEB), 2021 WL 3128866, at *4 (D.D.C. July 23, 2021); see
also Judicial Watch, Inc. v. United States Dep’t of Com., No. 17-cv-1283 (EGS), 2020 WL
6939807, at *5-6 (D.D.C. Nov. 25, 2020) (allowing one articulation of harm for multiple
categories of documents); Leopold v. United States Dep’t of Just., 411 F. Supp. 3d 1094, 1105-
06 (C.D. Cal. 2019) (upholding same articulation of harm for two categories of documents).
3
The excerpt from the privilege log for this one document is the only excerpt from the privilege
logs either party put before the Court.
5
The Plaintiffs further contend that because the Government is withholding approximately
8,000 documents as Category 1 4 documents, it must provide a more detailed justification of the
privilege. It is not clear why this is so. Several of these subcategories are drafts of documents,
which reasonably could share the same foreseeable harm. It also may well be, as the
Government contends, that there is no “articulable” difference in the potential harm from
releasing drafts of the proposed, recommended, and final determinations regarding the Section
404 action. ECF No. 127 at 27. Again, without having the added detail about the withheld
documents in the privilege logs to review, the Court cannot conclude that the Government has
failed to carry its burden that the privilege should apply simply because there are a lot of draft
documents over which it asserted privilege.
Plaintiffs also argue that any potential harm from the disclosure in this case could be
mitigated through a protective order. ECF No. 121 at 38. The Court cannot agree because if all
that were needed to overcome the deliberative process privilege were a protective order, the
Circuit would not require the fact-specific, document-by-document analysis. And the privilege is
one that allows the Government to withhold documents from production, not simply one that
prohibits publication.
Finally, during oral argument, Plaintiffs indicated that they have tried everything to get
these documents, including a FOIA request, and that all their attempts have been unsuccessful.
ECF No. 132 at 95:9-96:5. It is not clear what the Court is supposed to make of this. If these
documents are privileged, the Court would assume that the Government asserted privilege in
response to a FOIA request. There is nothing nefarious about the Government asserting
privilege here as well. One would expect it. To the extent Plaintiffs are unsatisfied with the
FOIA responses they got, their remedy lies in the appropriate district court.
Because the Court cannot address the privilege issues in the manner precedent requires,
the Court must deny the Plaintiffs’ motion to compel. This, of course, begs the question of
whether Plaintiffs should be allowed yet another chance to challenge the Government’s assertion
of the deliberative process privilege. In the Court’s last opinion and in oral argument on the
present motion, the Court stated emphatically that the present motion would be the last time the
Court would hear Plaintiffs raise a challenge to the Government’s existing privilege claims.
United Affiliates Corp., 154 Fed. Cl. at 340 (“But three things are clear. First, the Government
has been and remains willing to resolve Plaintiffs’ objections to its log entries. Second, there is a
strong likelihood that Plaintiffs will soon file a third motion to compel. Finally, there will not be
a fourth.”); ECF No. 132 at 159:7-160:5 (“[U]nless there’s something really egregious that Mr.
Holewinski can point me to, we’re not doing privilege again.”). Given that the Court has been
4
In the prior round of briefing on privilege issues, the Court agreed that the Government could
group like documents together and the declarations could apply to the categories or subcategories
of documents collectively, so long as the categories were sufficiently narrow to limit them to
truly like documents. United Affiliates Corp., 154 Fed. Cl. at 347. Category 1, which includes
multiple sub- and sub-sub- categories, includes documents that are internal correspondence and
drafts of agency documents. The Government does not attempt to assert the privilege over
Category 1 writ-large; rather, it asserts the privilege as to the sub-subcategories that are relatively
narrow-tailored groups of like documents.
6
unable to evaluate Plaintiffs’ challenges to the Government’s assertion of privilege on the
document-by-document basis that precedent requires, the Court concludes that the proper
resolution here, despite its prior admonitions, is to deny Plaintiffs’ motion without prejudice to
their filing a motion to compel specific documents that explains why each challenged document
should be disclosed under the test set forth in In re United States, 678 Fed. App’x at 987-88. 5
That said, the Court will not hear challenges to other privilege assertions (i.e., other than
deliberative process privilege) that could have been raised in the present motion but were not.
For the reasons stated above, the Court denies the Plaintiffs’ motion to compel, ECF No.
120.
IT IS SO ORDERED.
s/Edward H. Meyers
Edward H. Meyers
Judge
5
To the extent that Plaintiffs seek to compel disclosure of specific documents, they should be
aware that it will not be enough to rely solely upon Judge Wheeler’s Order granting discovery
beyond the administrative record from the D.C. Circuit litigation. While Judge Wheeler found
that certain documents would be relevant, he did not find this relevance sufficient to overcome
the deliberative process privilege. In fact, Judge Wheeler recognized that it was premature to
address privilege at that time and explicitly declined to do so. ECF No. 65 at 7.
7