Hall & Associates v. EPA

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

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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.

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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.

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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.

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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.