Petition for Writ of Certiorari — Moye, O'Brien, O'Rourke, Hogan & Pickert v. National Railroad Passenger Corp.

Supreme Court, U.S.

| FILED

No.04__Q -72 6 NOV 2.6 2004

In THR OFFICE OF THE CLERK

Supreme Court of the United States

MOYE, O’BRIEN, O’ROURKE, HOGAN & PICKERT,

Petitioner,

V.

NATIONAL RAILROAD PASSENGER CORPORATION,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JAMES E. Moye

Counsel of Record

Grecory S. MARTIN

ANTHONY R. KovaLcik

Mark O. MASTERSON

Moye, O’Brien, O’ Rourke,

PiCKERT & Martin, LLP

800 S. Orlando Avenue

Maitland, Florida 32751

(407) 622-5250

Attorneys for Petitioner

190783 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

QUESTIONS PRESENTED

This Petition presents three questions for the Court’s

consideration.

i.

Whether a Government agency may withhold documents

responsive to a Freedom of Information Act (“FOIA”),

5 U.S.C. § 552, request when the documents have only a

reasonable nexus to a claimed deliberative process?

Whether the Eleventh Circuit erred when it applied a

“process” based analysis rather than the document

specific analysis previously required by this Court’s

deliberative process privilege decisions?

Whether the Eleventh Circuit erred when it reversed the

district court based on a deliberative process that the

Respondent neither asserted nor proved at trial?

ii

CORPORATE DISCLOSURE STATEMENT

The Petitioner was a partnership.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED .............---+.

CORPORATE DISCLOSURE STATEMENT .....

TABLE OF CONTENTS ...........200ccee0e:

TABLE OF CITED AUTHORITIES ...........-

TABLE OF APPENDICES ...............--55-

OPINIONS AND ORDERS ENTERED BELOW ..

Ne di clive evdies beac

STATUTES INVOLVED .........-22.-02eeeee:

STATEMENT OF THE CASE ..........-----+-

“Moye I” — Exemption (b)(5) and the Audit

Work Papers ....... 2c c ccc cs ccccccccees

“Moye II” — Exemption (b)(5) and the

Anchor Bolt Documents ......... See eeees

REASONS FOR GRANTING THE PETITION ...

I. The Interpretation Of The FOIA And Its

Exemptions Are Matters Of Profound Public

Importance. .......... cece sec ce ee eeees

Page

ill

Vii

iv

Contents

Page

Il. The Court Interprets FOIA’s Exemptions

Narrowly To Preserve The FOIA’s Obligation

ORS 8 5 Rie e os erage 7

IiI. This Court’s Certiorari Review Is Necessary

To Correct The Eleventh Circuit’s Erroneous

Determination That Documents Having Only

A Reasonable Nexus To A Deliberative

Process Are Privileged. ................. 10

IV. This Court’s Certiorari Review Is Necessary

To Clarify That Courts Should Apply A

Document Specific Analysis When

Considering Whether Documents Are

Protected By The Deliberative Process

WOM avicaxcaccaucis conte ai: 16

V. The Eleventh Circuit’s Decision To Allow

Amtrak To Argue A Previously Unasserted

Deliberative “Process” Was Such A Serious

Departure From The Accepted And Usual

Course Of Judicial Proceedings That This

Court Should Exercise Its Supervisory

PO Swvnc iwacisiaees ee ae

Vv

TABLE OF CITED AUTHORITIES

P

Cases: Sai

Department of the Interior and Bureau of Indian

Affairs v. Klamath Water Users Protective Ass’n,

SEZ US. LACT) nc cc csccss ces geces sevens -8, 14

EPA vy. Mink,

GAOT SE. TECIGTS) acicccccdececadiavaneces 8,9, 14

Ethyl Corp. v. EPA,

25 F.3d 1241 (4" Cir. 1994) ......... cece eens 10, 11

Florida House of Representatives v. United States

Department of Commerce,

961 F.2d 941 (11™ Cir. 1992) ........--- ee eee 11,12

Grand Central P ship, Inc. v. Cuomo,

166 F.3d 473 (2d Cir. 1999) ........ eee eee tee

Hormel v. Helvering,

312 U.S. S52 CISA)... 0 cece cewaeveees ae

Nadler v. United States Department of Justice,

955 F.2d 1479 (11" Cir. 1992) ........ eee 11,12

National Archives and Records Admin. v. Favish,

124 S. Ct. 1370 (2004) 2. crccccccccsvccsecs oe

NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214 (1978) ....... ccc cece rece eeeee 7

vi

Cited Authorities

Page

NLRB vy. Sears, Roebuck & Co.,

423 UB. B36 GGFR 0 0.060600veks deep eaten passim

Renegotiation Board v.

Grumman Aircraft Eng'g Corp.,

421 US: MGB ISTE nocivcsvuvicntesas 9, 10, 16, 17

Sims v. Apfel,

450 US. 163 GOGGED oc cvcccccececeditsnceeus 22

United States Dep t of Justice v. Landano,

Joe US. 165 CIGSSD ica ceenss pene venues ll

Vaughn v. Rosen,

523 F.2d 1136 (D.C. Cir. 1975) ........ 10, 12, 18-20

Statutes:

5 USL. 65GB 0 on000ccs chadccessacissaene i

5 USA. © SRD... ctss ove seeanetanteweanies 7

SUS.C. § SEMMSMD ccccctensencdsaddetests 2

5S USL. SSR ccncccesssedudesucusae 3

$ UBC. SSSR) ac cncccccdcvddssbuseeudeses 7

S$ U.S.C. § SSMS) oi vcnddatstcceksaateee as 3, 4, 6

20 UBA. § TAPED chccccccccsscnunsusawngean 2

vii

TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Eleventh Circuit Filed

September 3, 2004 ......... 0.2 eee cece eeeees

Appendix B —- Opinion Of The United States Court

Of Appeals For The Eleventh Circuit Dated

July 14, 2004 .... 2... eee eee eee ee eee eee:

Appendix C — Findings Of Fact And Conclusions

Of Law Of The United States District Court For

The Middle District Of Florida, Orlando Division

Dated October 22, 2003 ........----eeeeeees

Appendix D — Order Of The United States District

Court For The Middle District Of Florida, Crlando

Division Dated August 18,2003 ...........-.

Appendix E — Order Of The United States Court

Of Appeals For The Eleventh Circuit Denying

Petition For Rehearing Filed September 14,

Rt i Cate b dedn des 66 <6808 640 ctewes

Page

la

9a

3la

|

OPINIONS AND ORDERS ENTERED BELOW

Two orders of the United States District Court for the

Middle District of Florida and two opinions of the United

States Court of Appeals for the Eleventh Circuit are at issue

in this petition.

The first district court order, dated August 18, 2003, is

unreported. App., infra, 44a. The second district court order,

dated October 22, 2003, is also unreported. App., infra, 31a.

The first opinion of the United States Court of Appeals

for the Eleventh Circuit, dated July 14, 2004, which reversed

the district court’s August 18, 2003 order through a novel,

overly broad interpretation of the deliberative process

privilege, is reported at Moye, O'Brien, O’Rourke, Hogan &

Pickert v. National Railroad Passenger Corporation, 376

F.3d 1270 (11" Cir. 2004) (“Moye I’). App., infra, 9a. The

Eleventh Circuit’s order denying the subsequent Petition for

Rehearing En Banc is unreported. App., infra, 75a.

The second opinion of the United States Court of Appeals

for the Eleventh Circuit, dated September 3, 2004, which

reviewed the district court’s October 22, 2003 order and

applied Moye /’s erroneous interpretation of the deliberative

process privilege, is unreported (“Moye IT’). App., infra, 1a.

No rehearing was sought for Moye II.

2

JURISDICTION

Moye I, App., infra, 9a, was filed July 14, 2004.

The subsequent Petition for Rehearing En Banc was denied

September 14, 2004. App., infra, 75a. Moye II was filed

September 3, 2004. App., infra, la. No rehearing was sought

for Moye II.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTES INVOLVED

The Freedom of Information Act (“FOIA”), provides, in

pertinent part: i

(a) Each agency shall make available to the public

information as follows:

* * *

(3)(A) Except with respect to the records

made available under paragraphs (1) and _.

(2) of this subsection, and except as

provided in subparagraph (E), each agency,

upon any request for records which

(i) reasonably describes such records and

(ii) is made in accordance with published

rules stating the time, place, fees, (if any),

an‘ procedures to be followed, shal] make

the records promptly available to any

person.

5 U.S.C. § 552(a)(3)(A).

3

The FOIA also provides, in part:

(b) This section does not apply to matters that

are —

(5) Inter-agency or intra-agency memo-

randums or letters which would not be

available by law to a party other than an

agency in litigation with the agency . . .

5 U.S.C. § 552(b)(5).

STATEMENT OF THE CASE ~—

On May 1, 2001, the petitioner, Moye, O’Brien,

O’ Rourke, Hogan & Pickert (“Moye O’Brien”), sent a FOIA

request to the respondent, National Railroad Passenger

Corporation (“Amtrak”). Moye O’Brien’s requests sought

records associated with routine financial audits performed

by Amtrak or Amtrak’s Office of Inspector General (the “audit

work papers”). The requests also sought records relating to

anchor bolts that were used in the construction of a system

that electrified portions of Amtrak’s rail lines (the “anchor

bolt documents”).

Amtrak declined to produce certain responsive records

and Moye O’Brien sued Amtrak, pursuant to 5 U.S.C.

§ 552(a)(4)(B), to compel disclosure. Amtrak answered and

reasserted its claim that the audit work papers and the anchor

bolt documents were exempted from disclosure by, inter alia,

the deliberative process privilege component of FOIA

Exemption (b)(5).

4

The parties filed cross-motions for summary judgment

regarding, inter alia, Moye O’Brien’s entitlement to the

requested documents and Amtrak’s assertion of the

deliberative process privilege. At summary judgment, the

district court! believed that Moye O’Brien was entitled to

the requested records because Amtrak failed to prove the

applicability of its asserted privileges. Nevertheless, in an

effort to give Amtrak a second chance, the district court

denied the cross-motions for summary judgment and held

- bench trials to consider anew Moye O’Brien’s entitlement to

the requested documents and Amtrak’s privilege claims.

The district court tried the question of Moye O’Brien’s

entitlement to the audit working papers separately from the

question of Moye O’Brien’s entitlement to the documents

relating to anchor bolts.

RSS Pathak Wk ab ah Ae se KE RS Wyre ne Laetheaze State ¥ eden: Aged Reda b Goad etre abd PS

“Moye I” — Exemption (b)(5)

and the Audit Work Papers

On July 28, 2003, the district court held a bench trial to

determine whether the deliberative process privilege

(Exemption (b)(5)), inter alia, exempted the audit work

papers from disclosure under the FOIA. In its post-trial order

dated August 18, 2003, the district court found in favor of q

Moye O’Brien concluding that “Amtrak failed to sustain its

burden of proving that the withheld working papers are within

the deliberative process privilege.” App., infra, at 71a.

Amtrak appealed the district court’s August 18, 2003

order to the United States Court of Appeals for the Eleventh

Circuit. The Eleventh Circuit, in an opinion dated July 14,

2004, reversed the district court and remanded the case.

1. The parties consented to trial before a magistrate judge.

The magistrate judge is hereinafter referred to as the “district court.”

ees

5

App., infra, at 30a. Moye I included three significant legal errors.

First, the Moye J court erred when it concluded that the

deliberative process privilege protects documents that have only

a “reasonable nexus” to a claimed deliberative process. In so

holding, the Moye / court eliminated the well-established

requirement that a privileged document was a direct part of the

deliberative process in that it makes recommendations or express

opinions on legal or policy matters.

Second, the Moye J court erred when it applied an improper

“process” based analysis that considered the documents in the

broad general context of Amtrak’s audit process. The “process”

based analysis does not specifically analyze whether each

document withheld by Amtrak is, in fact, deliberative and

predecisional.

Third, the Moye I court erred when it improperly allowed

Amtrak to change its case on appeal. At trial, Amtrak claimed

that the deliberative process at issue was Amtrak auditor

Gary Glowacki’s decision whether to issue a final audit report.

App., infra, at 60a. Amtrak’s evidence focused on Mr.

Glowacki’s process of deciding whether to issue a final audit

report. App., infra, at 58a. Moye O’Brien cross-examined

Amtrak regarding Mr. Glowacki’s deliberative process and,

based on the evidence at trial, the district court concluded that

Amtrak failed to prove its case.

In the circuit court, Amtrak recast its case and claimed that

the deliberative process at issue was Amtrak’s audit process

rather than Mr. Glowacki’s decision whether to issue a final

audit report. See App., infra, at 26a. The Eleventh Circuit

reversed the district court and directed a judgment in favor of

Amtrak based on Amtrak’s newly asserted deliberative process.

It did so even though Moye O’Brien did not get to test this

claim at trial and the district court did not consider the claim at

trial.

6

On August 4, 2004, Moye O’Brien filed a Petition for

Rehearing En Banc and sought further review of Moye I.

The Eleventh Circuit denied Moye’ O’Brien’s subsequent

Petition for Rehearing En Banc on September 14, 2004.

“Moye II” — Exemption (b)(5)

and the Anchor Bolt Documents

On September 8 and 9, 2003, the district court held a

bench trial to determine Amtrak’s claim that the deliberative

process privilege, inter alia, exempted documents responsive

to the anchor bolt requests from the FOIA. Based upon the

evidence at trial and an in camera review of the withheld

records, the district court, in an order dated October 22, 2003,

rejected Amtrak’s deliberative process privilege claim.

The district court found that Amtrak failed to prove the

existence of its claimed deliberative process and that the

documents it sought to withhold were predecisional and

deliberative. App., infra, at 35a-39a.

Amtrak appealed the district court’s October 22, 2003

order to the United States Court of Appeals for the Eleventh

Circuit. In an opinion dated September 4, 2004, the Eleventh

Circuit reversed the district court’s October 22, 2003 order

and remanded the case for further proceedings consistent with

Moye I. In reversing the district court, Moye II adopted the

faulty analysis of Moye J.

7

REASONS FOR GRANTING THE PETITION

I. The Interpretation Of The FOIA And Its Exemptions

Are Matters Of Profound Public Importance.

In a representative democracy, the citizens possess a

fundamental right to know “what the Government is up to.”

National Archives and Records Admin. v. Favish, 124 S. Ct.

1570, 1580 (2004). The FOIA enables citizens to learn what the

Government is up to by requiring Government agencies to

disclose documents in their possession. NLRB y. Robbins Tire

& Rubber Co., 437 U.S. 214, 242 (1978) (“The basic purpose

of FOIA is to ensure an informed citizenry, vital to the

functioning of a democratic society, needed to check against

corruption and to hold the governors accountable to

the governed.”). Overbroad interpretations of the FOIA’s

exemptions prevent citizens from learning what their

Government is up to by increasing the amount of information

that the Government may withhold. Indirectly then, overbroad

interpretations of the FOIA are harmful to our representative

democracy and are, necessarily, matters of profound public

importance that should be reviewed by this Court. In this case,

the need for certiorari review is paramount because the Eleventh

Circuit’s interpretations of the deliberative process privilege in

Moye I and Moye II are so overbroad that the privilege effectively

eviscerates the FOIA.

Il. The Court Interprets FOIA’s Exemptions Narrowly To

Preserve The FOIA’s Obligation Of Disclosure.

The FOIA enables the governed to become informed by

giving them a broad right to inspect and copy the Government’s

documents. 5 U.S.C. § 552(a)(2). At the same time, the FOIA

identifies those limited circumstances when the Government

may refuse to disclose requested documents. See § USC.

§ 552(b).

*

8

Discussing the relationship between the FOIA’s

disclosure obligation and the FOIA’s exemptions, this Court

has stated:

Without question, the Act is broadly conceived.

It seeks to permit access to official information

long shielded unnecessarily from public view

. .. Subsection (b) [the FOIA exemptions] is part

of this scheme and represents the congressional

determination of the types of information that the

Executive Branch must have the option to keep

confidential, if it so chooses. As the Senate

Committee explained, it was not ‘an easy task to

balance opposing interests, but it is not an

impossible one either . . . Success lies in providing

a workable formula which encompasses, balances,

and protects all interests, yet places emphasis on

the fullest possible disclosure.’

E.P.A. v. Mink, 410 U.S. 73, 80 (1973) (quoting S. Rep. No.

813, p. 3.); see also Department of the Interior and Bureau

of Indian Affairs v. Klamath Water Users Protective Ass'n,

532 U.S. 1, 7-8 (2001) (“{FOIA’s] limited exemptions do

not obscure the basic policy that disclosure, not secrecy, is

the dominant objective of the Act... .”); NLRB v. Sears,

Roebuck & Co., 421 U.S. 132, 136 (1975) (“As the Act is

structured, virtually every document generated by an ageficy

is available to the public in one form or another, unless it

falls within one of the Act’s nine exemptions.”).

This Court recognized, long ago, that the “exemptions

... are plainly intended to set up concrete, workable standards

for determining whether particular material may be withheld

or must be disclosed.” Mink, 410 U.S. at 79. “Conflicting

9

claims over ... documents”, like those presented by the

instant case, “must be considered” in “the context of the Act’s

attempt to provide a ‘workable formula’ that ‘balances, and

protects all interests’”. Jd. at 80.

This Court’s deliberative process privilege jurisprudence

has consistently implemented Congress’s intent and protected

the delicately crafted balance of the FOIA’s statutory scheme.

This Court has preserved the FOIA’s statutory scheme by

limiting the scope of the FOIA’s exemptions, particularly the

deliberative process privilege. Mink, 410 U.S. at 87 (“the

privilege that has been held to attach to intergovernmental

memoranda clearly has finite limits . . .”). In Mink, 410 U.S.

at 93, this Court recognized that the deliberative process

privilege only permits. the Government to withhold

documents that “are purely advisory and contain no separable,

factual information.” In Sears, 421 U.S. at 148-49, and

Renegotiation Board v. Grumman Aircraft Eng’g Corp., 421

U.S. 168, 184-85 (1975), the Court recognized that the

deliberative process privilege does not protect final opinions,

is limited to documents that are predecisional and

deliberative, and that the deliberative process privilege

analysis is document specific.

The Eleventh Circuit’s decisions in Moye I and Moye II

are contrary to this Court’s prior decisions and the FOIA’s

policy of disclosure because they unnecessarily broaden the

scope of the deliberative process privilege. Indeed, by

adopting the “reasonable nexus” test and applying a “process”

based analysis, Moye J and Moye IT have created an overbroad

privilege that allows the Government to withhold essentially

any document in its possession.

10

Ill. This Court’s Certiorari Review Is Necessary

To Correct The Eleventh Circuit’s Erroneous

Determination That Documents Having Only A

Reasonable Nexus To A Deliberative Process Are

Privileged.

The Eleventh Circuit unnecessarily broadened the scope

of the deliberative process privilege by holding that documents

that have only a “reasonable nexus” to a claimed deliberative

process are privileged. App., infra, at 28a-29a; see also App.,

infra, at 6a-7a. Under the “reasonable nexus” test, documents

that are merely peripheral to, or immaterial to, agency decision-

making become privileged notwithstanding their insignificance

to an agency’s deliberative process.

Neither Sears nor Renegotiation Board considered whether

the deliberative process privilege should protect documents that

are either peripheral to, or do not play a material role in, a

deliberative process. Sears and Renegotiation Board are silent

on the issue because in those cases it was undisputed that the

agency’s final decision-makers actually used the withheld

documents in their decision-making processes. Thus, there

was no question whether the documents at issue were peripheral

or immaterial with regard to the claimed deliberative processes.

Though this Court has not considered the question, some

of the circuit courts have. Those courts concluded that

documents that are peripheral to agency decision-making or do

not play a material role in a claimed deliberative process should

not be considered privileged. Grand Central P ship, Inc. v.

Cuomo, 166 F.3d 473, 482 (2d Cir. 1999) (rejecting application

of privilege to “peripheral” documents); Ethyl Corp. v. EPA,25

F.3d 1241, 1248 (4" Cir. 1994) (same); Vaughn v. Rosen, 523

F.2d 1136, 1143-44 (D.C. Cir. 1975) (requiring documents

11

to be a direct part of the claimed deliberative process).

The Fourth Circuit succinctly summarized this limitation on

the scope of the privilege when it stated that:

The privilege does not protect a document which

is merely peripheral to actual policy formulation;

the record must bear on the exercise of policy-

oriented judgment. Material which predates a

decision chronologically, but did not contribute

to that decision, is not predecisiona! in any

meaningful sense.

Ethyl Corp., 25 F.3d at 1248 (internal quotation marks

omitted, emphasis added).

Prior to its decisions in Moye J and Moye II, the Eleventh

Circuit also recognized that the deliberative process privilege

does not extend to documents that are peripheral to, or not a

material part of, the agency’s decision-making process.

The Eleventh Circuit expressed its limitation on the

privilege’s scope slightly differently than the Second and

Fourth Circuits. It limited the privilege by requiring

the documents at issue to have been a “direct part” of

the deliberative process at issue. Florida House of

Representatives v. United States Dep t of Commerce, 961 F.2d

941, 945 (11 Cir. 1992); Nadler v. United States Dept of

Justice, 955 F.2d 1479, 1490-91 (11% Cir. 1992).?

2. This Court disapproved parts of Nadler relating to Exemption

7. United States Dep't of Justice v. Landano, 508 U.S. 165, 170

(1993). This Court expressed no opinion regarding the parts of Nadler

that address the deliberative process privilege.

12

The Eleventh Circuit drew its “direct part” test from the

D.C. Circuit’s seminal deliberative process privilege case,

Vaughn v. Rosen. See Florida House of Representatives, 961

F.2d at 945 (citing Vaughn v. Rosen); Nadler, 955 F.2d at 1491

(same). In Vaughn, 523 F.2d at 1139-1140, the Government

claimed that reports prepared by the Bureau of Personnel

Management were excepted from FOIA’s disclosure requirement

because they were records of the agency’s deliberative process.

Each report included sections that evaluated the subject

agency’s management performance and sections that made

recommendations to the subject agency for improvements or

changes. /d. at 1140. The Government sought to withhold the

evaluative and the recommendatory portions of the reports,

arguing that: “the evaluative portions of the reports constitute

an integral part of an ongoing, pre-decisional deliberative

process because . . . they play a consultative role-by which the

agency changes its personnel policies, rules, regulations and

standards. .. .” Jd. at 1143 (emphasis added).

Rejecting the Government’s argument, the Vaughn court

recognized that:

It is not enough to assert, in the context of

Exemption 5, that a document is used by a

decisionmaker in the determination of policy.

Unevaluated factual reports or summaries of past

administrative decisions are frequently used by

decisionmaker in coming to a determination, and

yet it is beyond dispute that such documents would

not be exempt from disclosure. Rather, to come

within Exemption 5, the document must be a

direct part of the deliberative process in that it

makes recommendations or expresses opinions on

legal or policy matters.

a i il i a ee Ne i ali a ee th

Id. at 1143-44 (emphasis added).

<<

13

In Moye I and Moye II, the Eleventh Circuit receded from

the “direct part” test and improperly broadened the scope of

the deliberative process privilege by adopting its “reasonable

nexus” test. Instead of concluding that a document is

privileged if it is a direct part of deliberative process, the

Eleventh Circuit concluded that:

[Ijn order for the deliberative process privilege

to apply, the decision-making process must bear

a reasonable nexus to the documents sought.

App., infra, at 28a-29a (emphasis added); see also App.,

infra, at 6a-7a (adopting Moye I analysis).

Under a “reasonable nexus” test, the scope of the

deliberative process privilege becomes overlybroad.

Documents are now privileged without regard to their

contents or roles in the claimed deliberative process.

The Government’s ability to withhold documents is now only

constrained by the Government’s ability to articulate a

deliberative process and a “reasonable nexus” between that

process and a document that it wants to withhold.

The tremendous expansion in the volume of materials that

are now privileged upsets the balance of FOIA’s statutory

scheme by creating a statutory exception, the deliberative

process privilege, that is so broad that the exception swallows

the FOIA whole.

The overbreadth of the privilege under a “reasonable

nexus” test comes into sharp focus when the reasonable nexus

test and the direct part test are applied to a single set of facts

and the different outcomes are compared. Under the “direct

part” test, which was applied by the district court at trial,

Amtrak’s deliberative process privilege claim failed because

14

Amtrak did not prove that the withheld documents were

actually part of a deliberative process in that they make

recommendations on legal or policy matters. App., infra, at

68a. The documents themselves belied Amtrak’s claim that

the documents made recommendations on legal or policy

matters.

Under the “reasonable nexus” test applied by the circuit

court, however, Amtrak gained the ability to make a prima

_____ facie case for the privilege by asserting that its entire audit

process was a deliberative process and that all of its withheld

documents had some role in that deliberative process.

See App., infra, at 25a-28a. Documents suddenly became

deliberative regardless of whether they: (1) were actually

incorporated any advice or recommendations; (2) were

actually created to assist a decision-maker rather than as part

of an on-going, routine government process; (3) had any

identifiable role in a decision actually made; or (4) actually

gave advice or made recommendations.

—————

The overbreadth of the “reasonable nexus” test and the

propriety of the narrower “direct part” test also become

apparent when the two tests are considered in the light of the

policies underlying the FOIA and the deliberative process

privilege. Previously, this Court recognized that the purpose

of the deliberative process privilege is to prevent injury “to

the consultative functions of government .. .” NLRB, 421

U.S. at 149. It also observed that the privilege safeguards

“the policy of open, frank discussion between subordinate

and chief concerning administrative action”, Mink, 410 U.S.

at 87, but that it was not intended “to protect Government

secrecy pure and simple. . . .” Klamuth, 532 US. at 9.

15

The direct part test safeguards the “consultative functions

of government” because it protects documents that are truly

part of a deliberative process. Moreover, the direct part test

provides the courts with a reliable means to sort the truly

deliberative documents from the non-privileged documents

that the Government is hiding under blanket assertions of

the privilege. The reasonable nexus test, however, lends itself

to blanket assertions of the privilege by removing any

objective factors for courts to consider when evaluating the

Government’s privilege claim.

Additionally, the direct part test ensures that subordinates

can discuss matters with their superiors frankly. The direct

part test protects such communications because the direct

part test does not compel disclosure ofa subordinate’s advice

or recommendations. Under the direct part test, a

subordinate’s advice or recommendations will remain

privileged if the Government substantiates its privilege claim

by proving that the subordinate has an advisory role in a

claimed deliberative process and that the document that the

Government seeks to withhold actually reveals the

subordinate’s advice. The reasonable nexus test, however,

fosters Government secrecy because it fails to distinguish

protected advisory communications from. unprotected

communications.

The Eleventh Circuit's “reasonable nexus” test

improperly expands the scope of the deliberative process

privilege and is contrary to the policies underlying the FOIA.

This Court’s certiorari review is necessary to strike down

the “reasonable nexus’ test and restore the balance of the

FOIA’s statutory scheme. )

16

IV. This Court’s Certiorari Review Is Necessary To

Clarify That Courts Should Apply A Document

Specific Analysis When Considering Whether

Documents Are Protected By The Deliberative Process

Privilege. |

Sears and Renegotiation Board indicate that the

deliberative process privilege analysis is document specific.

Sears, 421 U.S. at 149 (“it is reasonable to construe

Exemption 5 to exempt those documents, and only those

documents. . .”); Renegotiation Board, 421 U.S. at 184-185

(“the issue in this case is whether the Division Reports and

the Regional Board Reports fall within Exemption 5 . . .”).

Notwithstanding this Court’s clear mandate for a document

specific test, the Eleventh Circuit erred by adopting a

“process” based analysis. See Moye I, App., infra, at 26a

(reversing because the district court did not “view[] the audit

process as a whole”); Moye II, App., infra, at 7a (reversing

because the district court did not “view the documents as

they relate to the entire deliberative process in which

[Amtrak] is engaged”).

Under the “process” based analysis applied in Moye J

and Moye II, the Government can improperly withhold any

document, regardless of whether the document itself is

predecisional and deliberative, if the document is simply

characterized as an “element” of some larger “deliberative

process.” Characterizing a document as an “element” of a

larger “deliberative process” is unjustifiably simple because,

under Moye I and Moye II, the Government only needs to

establish a reasonable nexus between the document and the

claimed “deliberative process”. |

17

The “process” based analysis adopted in Moye J and

Moye II conflicts with the document specific analysis that

this Court required in Sears and Renegotiation Board. It is

also contrary to the policies underlying the FOIA because

the “process” based analysis broadens the scope of the

privilege to such an extent that the privilege now enables

the Government to completely avoid its FOFA disclosure

obligations. In this regard, the question of whether the

deliberative process privilege extends to documents

associated with discrete, routine decisions simply because

the discrete decisions are characterized as “parts” of a larger

“deliberative process” is a matter of profound public

importance.

The conflict between this Court’s document specific

analysis and the Eleventh Circuit’s “process” based analysis

becomes apparent when the “process” based analysis and the

document specific analysis are applied to the facts of Moye

I. Under this Court’s document specific test, which the district

court applied, Amtrak’s privilege claim failed because the

individual documents that Amtrak sought to withhold were

not, themselves, predecisional and deliberative. App., infra,

at 68a. However, as seen Moye I, the circuit court’s

application of a “process” based analysis allowed Amtrak to

transform those non-privileged documents into privileged

documents by simply characterizing them as components of

a larger “deliberative process”. App. infra, at 25a-28a. Under

the “process” based analysis, all documents, without regard

to their particular contents, become deliberative and exempt

from FOIA by simply associating them with a claimed

deliberative process.

_ Application of the “process” based analysis in the context

of other Government agencies illustrates how the “process”

18

based analysis creates a deliberative process privilege that

will swallow the FOIA. Under the “process” based analysis,

any agency can assert that any of its work is part of a

“process,” and that the “process” is deliberative simply

because it involves a series of discretionary choices. An

agency can then assert the deliberative process privilege for

documents that are only peripherally related to the “process”

leaving the scope of the privilege undefined and, perhaps,

all encompassing. In the end, any Government agency could

apply this “analysis” to any of its work and all documents in

the agency’s possession become privileged and exempt from

the FOIA. The deliberative process privilege could thus

become the tool that agencies use to circumvent the FOIA’s

disclosure obligations and the FOIA would cease to have a

purpose.

In Vaughn, 523 F.2d at 1145, the court rejected a

“process” based analysis similar to that adopted by the

Eleventh Circuit. The Vaughn court discussed the flaws of a

“process” based analysis stating:

The Government appears to argue that this entire

process of management appraisal, evaluation, and

recommendations for improvement is a seamless

whole, that it is in its entirety a deliberative

process, and that it is this process which the

Government seeks to protect as an ongoing

continuous affair. On this view, starting when the

Commission’s staff initiates a survey of an agency,

when it notes down significant facts of its

operation, compares these with personnel and

other management directives, evaluates what

has been observed, until it formulates these

evaluations into conclusions which are usually put

19

as recommendations for improvement to the

surveyed agency all would be a part of a

deliberative process. As such it would be

protected under Exemption 5; to make any of

it subject to disclosure is to do violence to the

protection written in Exemption 5.

We cannot accept this. If we consider this entire

continuous ongoing process of management

appraisal, beginning with the action of the

Commission’s staff inquiries through the final

recommendations to the subject agency and its

final action thereon, as a deliberative process,

then surely we would be interpreting

Exemption 5 to protect too much. The phrase

“management process” or “personnel

improvement process” would swallow up a

substantial part of the administrative process,

and virtually -foreclose all public knowledge

- regarding the implementation of personnel

policies in any given agency. ...

*x* * *

In another respect the proposed Government

interpretation seeks to protect too much,

i.e., it assumes that the [Government]

recommendations, which it seeks to protect as

part of continuous deliberative process,

eventually always result in final decisions and

actions by the surveyed agency which can be

made public. After the [Government] transmits

its evaluations and recommendations to the

agency surveyed, there is no legally enforceable

20

obligation on the subject agency to take any action

at all. Those with some knowledge of the

daily functioning of the bureaucracy may

surmise that an unknown number of these

recommendations simply go into the files and

rest peacefully there, with no action which the

Government here would define as final and

subject to disclosure ever being taken at all.

Thus, the Government’s characterization of

this mass of material it seeks to protect as the

“deliberative process” would result in a huge

mass of material being forever screened from -

public view because the administrative

bureaucracy had never reached a “final”

decision on the management matters involved.

The public has an interest in decisions deferred,

avoided, or simply not taken for whatever reason,

equal to its interest in decisions made, which from

their very nature may more easily come to public

attention than those never made.

* *« *

Exemption 5 is designed to protect

subordinate’s advice to superiors, it is designed

to protect a true deliberative process usually

leading up to final decisions. If we construed

Exemption 5 as broadly as the Government

seeks to do here, we would go a long way

toward undercutting the entire Freedom of

Information Act.

Id. at 1145-46 (emphasis added).

21

Unlike the “process” based analysis, the document

specific test maintains the balance of the FOIA’s statutory

scheme. By requiring the Government to make a showing as

to each particular document that it seeks to withhold, the

document specific test ensures that the Government has an

appropriately limited safe harbor for developing law or policy

and that citizens have full access to all other documents.

The Eleventh Circuit’s “process” based analysis is an

overlybroad construction of the deliberative process privilege

that upsets the balance of the FOIA’s statutory scheme.

This Court should protect the balance of the FOIA’s statutory

scheme by granting the Petition and exercising its authority

to reverse the Eleventh Circuit’s erroneous “process” based

analysis.

V. The Eleventh Circuit’s Decision To Allow Amtrak To

Argue A Previously Unasserted Deliberative

“Process” Was Such A Serious Departure From The

Accepted And Usual Course Of Judicial Proceedings

That This Court Should Exercise Its Supervisory

Power.

In Moye I, the district court found, based on the evidence

presented at trial, that:

The only deliberative process that Amtrak

relies upon is the process by which Glowacki

makes a decision whether to issue a final audit

report.

App., infra at 60a (emphasis added).

22

On appeal, Amtrak cast aside Mr. Glowacki’s deliberative

process in favor of a new, previously unasserted deliberative

process — Amtrak’s entire audit “process.” App., infra, at

26a. The Moye J court inexplicably allowed Amtrak to recast

its case on appeal. See Id.

The Moye J court erred when it considered an argument

not previously presented to the district court. The law of this

Court is clear — the Court will not consider an argument

that was not previously presented to the lower courts. Sims

v. Apfel, 530 U.S. 103, 108-09 (2000). The Sims court

explained the rationale for this rule stating:

Ordinarily an appellate court does not give

consideration to issues not raised below. For our

procedural scheme contemplates that parties shall

come to issue in the trial forum vested with

authority to determine questions of fact. This is

essential in order that parties may have the

opportunity to offer all the evidence they believe

relevant to the issues which the trial tribunal is

alone competent to decide; it is equally essential

in order that litigants may not be surprised on

appeal by final decision there of issues upon

which they have had no opportunity to

introduce evidence.

Id. (quoting Hormel v. mttiitieass 312 U.S. 552, 556 (1941)

(emphasis added).

The harm identified by Sims occurred in the instant case.

In Moye I, the Eleventh Circuit determined that Amtrak was

entitled to judgment in its favor based upon its new theory

of the case and reversed and remanded the proceeding with

23

judgment for Amtrak. It did so even though Moye O’Brien

had not been given an opportunity to test Amtrak’s evidence

in support of its new theory. By reversing and remanding,

the Eleventh Circuit denied Moye O’Brien due process.

The circuit court apparently relied on Sears, 421 U.S. at

151-52 n.18, as its authority for allowing Amtrak to recast

its deliberative process on appeal. App., infra at 25a-26a.

Citing Sears for the proposition that (1) the government does

not have to identify a specific decision; and that (2) the

deliberative processes that are privileged may include when

“Agencies are ... engaged in a continuing process of

examining their policies. . . .”, id. (citing Sears, 421 U.S. at

n.18), the Eleventh Circuit simply concluded that the district

court erred by not viewing Amtrak’s “entire auditing process

as a whole”, App., infra, at 26a.

The circuit court’s justification for permitting Amtrak

to recast its case fails because Sears is wholly inapposite to

this case. Sears does not apply because Amtrak identified a

decision at trial (Mr. Glowacki’s decision whether to issue a

final audit report) and disclaimed the involvement of any

policies. Thus, this is not a case were Amtrak was claiming a

decision in a “continuing process of examining policies. . .”

Allowing Amtrak to change its case on appeal and then

directing judgment in Amtrak’s favor based upon the new

theory without providing Moye O’Brien a chance to test

Amtrak’s evidence was such a serious departure form the

accepted and usual course of proceedings that this Court

should grant this Petition and exercise its supervisory power.

24

CONCLUSION

The Court should grant Moye O’Brien’s Petition for Writ

of Certiorari and review Moye J and Moye II.

Respectfully submitted,

JAMES E. Moye

Counsel of Record

Grecory S. MARTIN

ANTHONY R. KovaLcik

Mark O. MASTERSON

Moye, O’Brien, O’RourKE,

PICKERT & Martin, LLP

800 S. Orlando Avenue

Maitland, Florida 32751

v" (407) 622-5250

Attorneys for Petitioner

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