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Judicial Watch • JW v DOD appellant brief 01935 5054

JW v DOD appellant brief 01935 5054

JW v DOD appellant brief 01935 5054

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NOT YET SCHEDULED FOR ORAL ARGUMENT] THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
_________
No. 16-5054
_________
JUDICIAL WATCH, INC.
Plaintiff-Appellant,
U.S. DEPARTMENT DEFENSE
Defendant-Appellee.
__________ APPEAL FROM THE U.S. DISTRICT COURT
FOR THE DISTRICT COLUMBIA
__________
BRIEF APPELLANT JUDICIAL WATCH, INC.
__________
Paul Orfanedes
Jason Aldrich
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
CERTIFICATE PARTIES, RULINGS,
AND RELATED CASES
Pursuant Cir. 28(a)(1), counsel provides the following information parties, rulings, and related cases:
(A)
Parties and Amici
The following parties, interveners, and amici curiae appeared, sought
appear, below:
Plaintiff:
Judicial Watch, Inc.
Defendant:
U.S. Department Defense
The following parties, interveners, and amici curiae are before this Court
appeal:
Plaintiff-Appellant:
Judicial Watch, Inc.
Defendant-Appellee:
U.S. Department Defense
(B)
Ruling under Review
The ruling under review the Opinion and Order the United States
District Court for the District Columbia (Jackson, J.) issued February
2016. The ruling can found Joint Appendix pages 71-77 and published
Judicial Watch, Inc. U.S. Dep Defense, 2016 U.S. Dist. LEXIS 11872
(D.D.C. Feb. 2016).
(C)
Related Cases
Judicial Watch, Inc. does not believe that there are any related cases within
the meaning Local 28(a)(1)(C).
/s/ Paul Orfanedes
TABLE CONTENTS
TABLE CONTENTS ............................................................................................i
TABLE AUTHORITIES ....................................................................................
GLOSSARY ABBREVIATIONS ......................................................................vi
JURISDICTIONAL STATEMENT ..........................................................................
STATEMENT THE ISSUES PRESENTED .......................................................
STATUTES ................................................................................................................
STATEMENT THE CASE ..................................................................................
STATEMENT FACTS ........................................................................................
Sgt. Bowe Bergdahl and the Release Detainees from
Guantanamo Bay ...................................................................................
II.
Judicial Watch FOIA Request ............................................................
III.
The Proceedings Below .........................................................................
SUMMARY THE ARGUMENT ........................................................................
ARGUMENT .............................................................................................................
Standard Review ...............................................................................
II.
The Lumpkin Memorandum Not Protected the
Deliberative Process Privilege...............................................................
CONCLUSION ........................................................................................................
CERTIFICATE COMPLIANCE .......................................................................
CERTIFICATE SERVICE
TABLE AUTHORITIES
CASES
PAGE
*Afshar U.S. Dep State,
702 F.2d 1125 (D.C. Cir. 1983).....................................................................10
Am. Soc Pension Actuaries Internal Revenue Serv.,
746 Supp. 188 (D.D.C. 1990)....................................................................
*Coastal States Gas Corp. U.S. Dep Energy,
617 F.2d 854 (D.C. Cir. 1980).............................................................9, 10,
Dudman Communications Corp. U.S. Dep Air Force,
815 F.2d 1565 (D.C. Cir. 1987).......................................................................
General Electric Co. Johnson,
2006 U.S. Dist. LEXIS 64907 (D.D.C. Sept. 12, 2006)................................
*Nat Council Raza U.S. Dep Justice,
411 F.3d 350 (2d Cir. 2005) ..........................................................................
*Nat Labor Relations Bd. Sears, Roebuck Co.,
421 U.S. 132 (1975).................................................................................10,
Niemeier Watergate Special Prosecution Force,
565 F.2d 967 (7th Cir. 1977) ...................................................................10,
Public Citizen, Inc. Office Management and Budget,
598 F.3d 865 (D.C. Cir. 2010).........................................................................
Renegotiation Bd. Grumman Aircraft Eng Corp.
421 U.S. 168 (1978).........................................................................................
Sample Bureau Prisons,
466 F.3d 1086 (D.C. Cir. 2006)....................................................................... Authorities upon which Plaintiff-Appellant chiefly relies are marked with
asterisks.
Sussman U.S. Marshals Service,
494 F.3d 1106 (D.C. Cir. 2007).......................................................................
U.S. Dep Interior Klamath Water Users Protective Ass
532 U.S. (2001).............................................................................................
RULES AND STATUTES U.S.C. 552 ........................................................................................................ U.S.C. 1291 ........................................................................................................ U.S.C. 1331 ........................................................................................................ U.S.C. 3101 ......................................................................................................
Fed. App. 4(a)(1)(B)..............................................................................................
Nat Defense Auth. Act for Fiscal Year 2014, Pub. Law No. 113-66,
1035, 127 Stat. 672 (Dec. 26, 2013) .............................................................
Nat Defense Auth. Act for Fiscal Year 2014, Pub. Law No. 113-66,
1035(a), 127 Stat. 672 (Dec. 26, 2013) ..................................................
Nat Defense Auth. Act for Fiscal Year 2014, Pub. Law No. 113-66,
1035(b), 127 Stat. 672 (Dec. 26, 2013) ..................................................
Nat Defense Auth. Act for Fiscal Year 2014, Pub. Law No. 113-66,
1035(d), 127 Stat. 672 (Dec. 26, 2013) .................................................. Authorities upon which Plaintiff-Appellant chiefly relies are marked with
asterisks.
iii
GLOSSARY ABBREVIATIONS
DOD
U.S. Department Defense
FOIA
Freedom Information Act
Joint Appendix 2014 NDAA
National Defense Authorization Act for Fiscal
Year 2014
JURISDICTIONAL STATEMENT
The U.S. District Court for the District Columbia District Court had
jurisdiction pursuant U.S.C. 1331 because this action arises under the laws the United States, namely the Freedom Information Act, U.S.C. 552 FOIA The Court has jurisdiction over this appeal pursuant U.S.C.
1291. This appeal timely under Fed. App. 4(a)(1)(B) because the District
Court entered its final judgment February 2016, and timely notice appeal
was filed February 29, 2016. Joint Appendix and 78.
STATEMENT THE ISSUES PRESENTED
Whether the Lumpkin Memorandum, prepared Assistant
Secretary Defense Michael Lumpkin for U.S. Secretary Defense Chuck
Hagel use deciding whether authorize the transfer five (5) Guantanamo
Bay detainees the nation Qatar exchange for the release U.S. Army Sgt.
Bowe Bergdahl, lost any deliberative character may have once had and should
produced Judicial Watch its entirety.
STATUTES U.S.C. 552. Public information; agency rules, opinions,
orders, records, and proceedings
(b)
This section does not apply matters that are
(5) inter-agency intra-agency memorandums letters that
would not available law party other than agency
litigation with the agency, provided that the deliberative process
privilege shall not apply records created years more before
the date which the records were requested.
STATEMENT THE CASE issue this appeal whether the U.S. Department Defense DOD the Department improperly withholding memorandum concerning the
transfer five Guantanamo Bay detainees the nation Qatar exchange for
the release U.S. Army Sgt. Bowe Bergdahl. The District Court correctly
determined that the memorandum, referred the Lumpkin Memorandum
because was prepared Assistant Secretary Defense Michael Lumpkin,
was responsive Judicial Watch FOIA request, but found that the memorandum
was deliberative and therefore exempt from production under FOIA Exemption DOD own submissions conclusively show that the Lumpkin Memorandum
lost any deliberative character may have once had when was adopted U.S.
Secretary Defense Chuck Hagel. result, the memorandum neither predecisional nor deliberative, but instead reflects final agency decision. should produced Judicial Watch its entirety.
STATEMENT FACTS
Sgt. Bowe Bergdahl and the Release Detainees from Guantanamo
Bay. the aftermath the September 11, 2001 attacks, the United States and its
allied forces captured individuals fighting behalf al-Qaida and the Taliban.
The United States detains some these individuals the U.S. Naval Station
Guantanamo Bay, Cuba.
Section 1035 the National Defense Authorization Act for Fiscal Year
2014 2014 NDAA authorizes the Secretary Defense transfer release
individuals held Guantanamo Bay, provided the Secretary makes specific
determination and provides notification certain congressional committees. Pub. No. 113-66, 1035, 127 Stat. 672, 851 (2013). The requisite determination may made under section 1035(a) section 1035(b). Under section 1035(a), the
Secretary must determine that the individual longer threat the national
security the United States. Id. 1035(a). Under section 1035(b), the
Secretary must determine that actions that have been are planned taken
will substantially mitigate the risk such individual engaging reengaging
any terrorist other hostile activity that threatens the United States United
States persons interests and that the transfer the national security interests the United States. Id. 1035(b). addition, the Secretary must notify the
appropriate committees Congress determination not later than days
before the transfer release the individual. Id. 1035(d). The notification
must include certain information, such detailed statement the basis for the
transfer release and [a]n explanation why the transfer release the
national security interest the United States. Id. May 31, 2014, Secretary Hagel transferred five detainees from
Guantanamo Bay the nation Qatar exchange for the Taliban release
U.S. Army Sgt. Bowe Bergdahl. 13-14.
II.
Judicial Watch FOIA Request. June 2014, Judicial Watch submitted FOIA request DOD seeking
access any and all records concerning, regarding, relating the
determinations the Secretary the U.S. Department Defense transfer the
detainees Qatar. and 28. DOD request, Judicial Watch clarified
July 22, 2014 that was seeking access
any and all Secretary Defense memos signed before May 31,
2014, that approve the release the five Guantanamo Bay detainees
exchanged for Sgt. Bowe Ber[g]dahl, who included:
Khair Ulla Said Wali Khairkhwa
Mullah Mohammad Fazi
Mullah Norullah Noori
Abdula Haq Wasiq
Mohammad Nabi Omari.
Judicial Watch also clarified that sought any determinations made the
Secretary Defense, such determinations were separate and apart from any
memos the Secretary Defense may have signed approving the release the
detainees. 7-8 and 39-40.
Judicial Watch filed suit November 18, 2014, when DOD failed
respond substantively the request.
III.
The Proceedings Below. April 27, 2015, DOD produced only one record Judicial Watch
five-page, heavily-redacted letter from Secretary Hagel the Hon. Carl Levin,
Chair the U.S. Senate Committee Armed Services.1 13-18. The cover
letter accompanying the Department production stated, The only documents
responsive your request are eight identical letters addressed members
Congress. Id. 13. The letter continued, Specifically, the letters, signed the
Secretary Defense May 31, 2014, are addressed Senators Dianne Feinstein,
Barbara Mikulski, Robert Menendez, and Carl Levin, and Congressmen Mike
Rogers, Howard Buck McKeon, Royce, and Harold Rogers. Id. The
single, heavily-redacted letter produced DOD appears one the
notifications required section 1035 the 2014 NDAA, albeit without the
requisite 30-day advanced notice. DOD appears have ignored the law 30-day
advanced notification requirement.
Large portions the letter were redacted DOD pursuant FOIA
Exemption 13-18. Judicial Watch did not challenge these redactions
the letter. August 26, 2015, DOD moved for summary judgment, asserting that the
single letter produced Judicial Watch was the only record responsive the
request. Judicial Watch opposed the motion, arguing that DOD moving
papers made reference additional record unproduced, six-page
memorandum that also was plainly responsive the request. 3-4 and 73.
Specifically, declaration signed DOD Associate Deputy General
Counsel Mark Harrington, the department asserted that the only potentially
responsive records were cover memorandum with attachments the Secretary Defense from Assistant Secretary Defense Michael Lumpkin for
consideration approving the transfer the five detained individuals, and eight
identical notification letters addressed the chairs relevant committees
regarding the transfer. 23. Associate Deputy General Counsel Harrington
declared that then-Secretary Defense Hagel signed the eight identical classified
notification letters, but did not sign endorse the cover memorandum from
Assistant Secretary Lumpkin. 23. continued, informed that
common for the Secretary Defense not endorse cover memorandum,
proceeds sign the correspondence submitted beneath the cover memorandum.
Id. Had the Secretary Defense signed separate decision memo, would have
been returned and stored the DOD component office that had prepared the
action, this instance the Office the Under Secretary Defense for Policy.
Id. 24. According Associate Deputy Counsel Harrington, [t]he
memorandum and attachments from Assistant Secretary Lumpkin were not
responsive Plaintiff FOIA request because they did not constitute signed
memo other determination the Secretary Defense relating the detainees.
Rather, these documents included information provided assist the Secretary
his deliberations regarding whether approve the transfer. Id. Harrington also
asserted that the determination transfer the five individuals was not based
upon Section 1035(a)(1) the 2014 NDAA, but rather, described the
congressional notification letter provided plaintiff, the transfer was based upon
Section 1035(b) the 2014 NDAA. Id. 25. [A]s Secretary Hagel
testified before the House Armed Services Committee June 11, 2014,
determined that the risks associated with the transfer had been substantially
mitigated the security measures put place Qatar. Id.
The District Court ordered DOD submit the cover memorandum and
attachments the Court for camera review. 73. After its review and
further briefing, the District Court held that the Lumpkin Memorandum was
responsive Judicial Watch request, but was subject the deliberative process
privilege and nothing beyond the TO:, FROM:, and SUBJECT: lines should
released Judicial Watch. Id. 60, and 73. almost completely-redacted
copy the memorandum was subsequently produced Judicial Watch, and
summary judgment was entered DOD favor February 2016. Id. 6267, and 68.
SUMMARY THE ARGUMENT
The District Court erred holding that the entire substance the Lumpkin
Memorandum was protected from disclosure the deliberative process privilege.
While the memorandum may have been deliberative when was originally
prepared and submitted Secretary Hagel, became final when the Secretary
adopted signing the congressional notification letters accompanying the
memorandum. DOD own admission, was the Secretary common
practice not endorse cover memoranda proceeds sign the
correspondence submitted beneath the cover memorandum. Moreover, Judicial
Watch only requested signed memos and/or determinations the secretary, not
pre-decisional documents, and the Lumpkin Memorandum had not been signed otherwise constituted the determination(s) required the 2014 NDAA,
would not have been responsive Judicial Watch request. also appears
the only record the Secretary actual determination(s) regarding the transfers.
Consequently, the Lumpkin Memorandum longer deliberative document for
purposes FOIA, and should have been produced Plaintiff without redaction.
ARGUMENT
Standard Review. FOIA cases, district court decisions are reviewed novo. Sussman
U.S. Marshals Service, 494 F.3d 1106, 1111-12 (D.C. Cir. 2007) (citing Sample
Bureau Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006)).
II.
The Lumpkin Memorandum Not Protected the Deliberative
Process Privilege.
The deliberative process privilege protects documents reflecting advisory
opinions, recommendations and deliberations comprising part process
which governmental decisions and policies are formulated. U.S. Dep Interior Klamath Water Users Protective Ass 532 U.S. (2001). Its purpose
protect the executive deliberative processes not protect specific materials.
Dudman Communications Corp. U.S. Dep Air Force, 815 F.2d 1565, 1568
(D.C. Cir. 1987). For agency properly withhold records under the
deliberative process privilege, the agency must demonstrate that the records are
both predecisional and deliberative. Public Citizen, Inc. Office
Management and Budget, 598 F.3d 865, 874 (D.C. Cir. 2010) (quoting Coastal
States Gas Corp. U.S. Dep Energy, 617 F.2d 854, 866, (D.C. Cir. 1980)).
The U.S. Supreme Court has defined pre-decisional documents those
prepared order assist agency decisionmaker arriving his decision.
Renegotiation Bd. Grumman Aircraft Eng Corp., 421 U.S. 168, 184 (1978).
pre-decisional document must precede, temporal sequence, the decision
which relates. General Electric Co. Johnson, 2006 U.S. Dist. LEXIS 64907,
*13 (D.D.C. Sept. 12, 2006). Whereas pre-decisional documents are privileged,
communications made after the decision and designed explain are not.
Nat Labor Relations Bd. Sears, Roebuck Co., 421 U.S. 132, 151-152 (1975) Sears The reason for excluding post-decisional documents from FOIA
straightforward: documents created after the decision cannot cause injury the
deliberative process. Id. difficult see how the quality decision will affected communications ... occurring after the decision finally reached. part the deliberative process, the document must part the
decision making process, or, this Court has described, [must] reflect[] the giveand-take the consultative process. Coastal States, 617 F.2d 854 866.
Moreover, this Court has stated, [T]he agency has the burden establishing what
deliberative process involved, and the role played the documents issue
the course that process. Id. 868.
Even record protected the deliberative process privilege, may
lose this protection final decision maker adopts incorporates the record
reference. Afshar U.S. Dept. State, 702 F.2d 1125, 1142 (D.C. Cir. 1983) the extent the reasoning the recommendations expressly adopted, there longer any need protect the consultative process. see also Niemeier
Watergate Special Prosecution Force, 565 F.2d 967, 973 (7th Cir. 1977) (ordering
disclosure underlying memorandum that was expressly relied final
agency dispositional document. the Supreme Court wrote Sears, when
record adopted agency policy incorporated therein reference:
The probability that agency employee will inhibited from freely
advising decisionmaker for fear that his advice, adopted, will
become public slight. First, when adopted, the reasoning becomes
that the agency and becomes its responsibility defend. Second,
agency employees will generally encouraged rather than
discouraged public knowledge that their policy suggestions have
been adopted the agency. Moreover, the public interest knowing
the reasons for policy actually adopted agency supports
[disclosure].
Sears, 421 U.S. 161 (emphasis added). The action causing the loss the
protection may informal implied. See Coastal States, 617 F.2d 866 Finally, even the document predecisional the time prepared, can
lose that status adopted, formally informally, the agency position
issue used the agency its dealing with the public. see also Nat
Council Raza, U.S. Dept. Justice, 411 F.3d 350, 356 (2d Cir. 2005); Am.
Soc Pension Actuaries Internal Revenue Serv., 746 Supp. 188, 191
(D.D.C 1990). [C]ourts must examine all the relevant facts and circumstances
determining whether express adoption incorporation reference has occurred.
Nat Council Raza, 411 F.3d 357, n.5. law, Secretary Hagel was required least three things releasing
the detainees from Guantanamo Bay exchange for Sgt. Bergdahl. First, was
required make the specific determination(s) required the 2014 NDAA.
Pub. No. 113-66, 1035(a) and/or (b). Second, was required notify
particular congressional committees least days advance the detainees
release. Id. 1035(d). Third, was required create and preserve records
his determination(s) release the detainees, undeniably significant agency
decision. U.S.C. 3101.
Secretary Hagel satisfied these obligations (albeit not the 30-day advance
notice requirement) when signed the eight congressional notification letters
attached the Lumpkin Memorandum. 23. DOD own admission,
was the Secretary practice not endorse cover memorandum signed
correspondence submitted him with the cover memorandum. Id. Associate
Deputy General Counsel Herrington attested, [I]t common for the Secretary
Defense not endorse cover memorandum, proceeds sign the
correspondence submitted beneath the cover memorandum. Id. signing the
notification letters, Secretary Hagel adopted the Lumpkin Memorandum his
own. The memorandum became the determination(s) required the Secretary
the 2014 NDAA before the detainees could released. Because Secretary
Hagel adopted the Lumpkin Memorandum, the record lost any deliberative
character may have once had. longer pre-decisional record.
Indeed, Judicial Watch only requested signed Secretary Defense
memos determinations made the Secretary about the detainees release. 7-8. Assistant Secretary Lumpkin did not sign the memorandum, and the
determination(s) regarding the detainees release was not his make. 62-68.
Secretary Hagel made the determination(s) and signed the memorandum
signing the accompanying correspondence. Id. 23. Secretary Hagel had not
signed the memorandum following his customary practice signing the
accompanying correspondence, the memorandum did not constitute the
Secretary determination(s) regarding the detainees release, then the
memorandum would not responsive Judicial Watch request. The District
Court expressly found that the memorandum was responsive, however, and
ordered that redacted copy the memorandum produced. [T]he
record responsive plaintiff FOIA request. and 73. Not only that ruling
plainly correct, but DOD has not appealed it, and the time for any appeal crossappeal has long since expired.
The Lumpkin Memorandum also the only record Secretary Hagel
actual determination(s) regarding the release the detainees. According DOD, records other than the memorandum and accompanying congressional
notification letters exist. 13. The Secretary must have intended adopt the
Lumpkin Memorandum his own when signed the congressional notification
letters because otherwise would not have satisfied his record creation and
preservation obligations. See U.S.C. 3101. The congressional notification
letters only provided notice the Secretary determination(s). 13-18. They
are not actual determinations. find that Secretary Hagel made the requisite
determination(s), but did not adopt the Lumpkin Memorandum his own, would conclude that violated his record creation and preservation obligations.
The District Court nonetheless found indication that the Secretary
Defense ever expressly adopted the Lumpkin Memorandum. 75. That
finding was error. Associate Deputy Counsel Harrington declaration provides
ample evidence that Secretary Hagel adopted the memorandum signing the
accompanying congressional notification letters accordance with his common
practice evidence that the District Court does not appear have considered
finding that the deliberative process privilege applies. Id. 72-77. The Lumpkin
Memorandum responsive because was signed Secretary Hagel and
constitutes his legally-required determination(s) regarding the release the
detainees. For that same reason, the memorandum lost any deliberative character
may once have had. find that the memorandum responsive Judicial
Watch request, but nonetheless deliberative because was not adopted
Secretary Hagel internally inconsistent. Under the circumstances, the
memorandum cannot both responsive and deliberative. conclude otherwise
would contrary the undisputed facts this case.
Similarly, Secretary Hagel did not merely act accordance with Assistant
Secretary Lumpkin recommendation accept the Lumpkin Memorandum
reasoning conclusions. The District Court concerns this regard are
misplaced. 76. The facts show that Secretary Hagel signed off the
memorandum accordance with his customary practice, making his own. Id.
23. The Lumpkin Memorandum became Secretary Hagel final decision and,
result, any deliberative character the record may once have had has been lost.
CONCLUSION
For the foregoing reasons, Judicial Watch respectfully requests that the
District Court finding that the Lumpkin Memorandum protected from
disclosure the deliberative process privilege reversed and that DOD
ordered produce the unredacted memorandum Judicial Watch its entirety.
Dated: July 25, 2016
Respectfully submitted,
JUDICIAL WATCH, INC.
/s/ Paul Orfanedes
Paul Orfanedes
/s/ Jason Aldrich
Jason Aldrich
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
CERTIFICATE COMPLIANCE
The undersigned certifies that this brief complies with the type-volume
limitations Fed. App. 32(a)(7). The brief, excluding exempted portions,
contains 3,337 words (using Microsoft Word 2010), and has been prepared
proportional Times New Roman, 14-point font.
/s/ Paul Orfanedes
CERTIFICATE SERVICE hereby certify that July 25, 2016, filed via the CM/ECF system the
foregoing BRIEF APPELLANT JUDICIAL WATCH, INC. with the Clerk the Court. Participants the case are registered CM/ECF users and service will accomplished the Appellate CM/ECF system. also certify that caused eight copies delivered the Clerk Court
via hand delivery.
/s/ Paul Orfanedes