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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1121

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1827%3A1. Public record. Not legal advice.