Hall & Assocs. v. EPA, 956 F.3d 621 (D.C. Cir. 2020) (Millett, J.)

Hall & Assocs. v. EPA, 956 F.3d 621 (D.C. Cir. 2020) (Millett, J.)

Re:  Request for records concerning "EPA's purported adoption of a 'nonacquiescence decision'"

Disposition:  Vacating district court's grant of government's motion for summary judgment; remanding case to district court

• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the District of Columbia Circuit holds that "the district court erred in entering summary judgment for the EPA."  "A genuine issue of material fact remains as to when the EPA adopted its nonacquiescence decision . . . ."  "That factual dispute is critical to application of the deliberative process privilege."  The court explains that "[the requester's] proffered evidence, the EPA's own submissions . . . , and our own in camera review of the withheld materials offer up a buffet of different dates by which the nonacquiescence decision might have been adopted."  "The summary judgment record simply does not dictate an answer to that factual question."  "Because the EPA did not meet its burden of demonstrating conclusively that its nonacquiescence determination postdates the creation of all of the still-withheld documents, the district court erred in granting summary judgment to the EPA."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The Court of Appeals for the District of Columbia Circuit rejects the requester's argument "that the district court abused its discretion in denying [the requester's] motion to amend its complaint to add a challenge to the adequacy of the EPA's search for responsive documents."  The court relates that "[the requester] does not dispute that it failed to administratively exhaust that claim as the law generally requires."  "[The requester] argues instead that the failure to exhaust is excused because the potential inadequacy of the EPA's search for records first 'arose during the litigation and not at the time of FOIA denial[.]'"  "Specifically, [the requester] contends that the EPA's FOIA response 'neither identified the existence of, nor sought to withhold, [one specific statement].'"  The court finds that the "EPA never mentioned the Desk Statement in its FOIA response because that document was not responsive to [the requester's] narrow FOIA request."  "So [the requester's] failure to exhaust is fatal to its argument."
   
• Litigation Considerations, Vaughn Index/Declaration:  Responding to the requester's argument that "the district court abused its discretion in denying [the requester's] motion to strike one of [defendant's] declarations for wrongly denying that a nonacquiescence decision had been made[,]" the Court of Appeals for the District of Columbia Circuit notes that "[t]he district court found that [defendant's] statements that no nonacquiescence decision had been made reflected only 'an earnestly held but mistaken view of the law,' not a factual misrepresentation."  The court holds that "[n]othing in the law compels a district court to strike an entire declaration that includes relevant factual representations simply because the declaration also contains genuinely believed, but mistaken conclusions of law."