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Andrus v. United States Department of Energy

United States District Court, D. Idaho

August 8, 2016

CECIL D. ANDRUS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF ENERGY, Defendant.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief Judge.

         INTRODUCTION

         Before the Court is Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment. This case arises from a Freedom of Information Act request submitted by the Plaintiff, former Idaho Governor Cecil D. Andrus, to the Defendant United States Department of Energy.

         BACKGROUND

         On January 22, 2015, Andrus submitted a FOIA request to the DOE seeking “copies of all communication between any officials of the United States Department of Energy and any official in the state [sic] of Idaho that is in any way related to a ‘waiver’ of the state [sic] of Idaho’s 1995 settlement agreement (the so called Batt Agreement) with the Department of Energy.” FOIA Letter, ¶ 1, Dkt. 11-5. The “Batt Agreement” is a 1995 settlement agreement negotiated between the State of Idaho, the Department of Energy, and the United States Navy. Batt Agreement, Dkt. 11-5, Ex. A). The Batt Agreement governs the treatment and disposal of nuclear waste in Idaho at the Idaho National Laboratory (“INL”) through the year 2035. Id. Andrus submitted the FOIA request in response to concerns over negotiations between the State of Idaho and DOE regarding a possible waiver of some of the State’s rights under the Batt Agreement. In 2011, the DOE and the State of Idaho initiated a Memorandum of Agreement (“MOA”) that addressed certain conditions under which Idaho could waive its rights under the Batt Agreement, which would allow DOE to send certain quantities of spent nuclear fuel from commercial power plants to the INL. Subsequently, in December 2014, the DOE expressed a desire to conduct tests of commercial spent nuclear fuel from various sources, and determined that the INL was its best option for the tests. The DOE, pursuant to the 2011 MOA, requested “conditional approval” from the State of Idaho officials for a waiver of the Batt Agreement. The waiver would allow two proposed shipments of commercial spent nuclear fuel to be sent to the INL. Andrus submitted his FOIA request one month later.

         On March 18, 2015, Andrus agreed to narrow the scope of his request to include only those documents he originally requested that “relate to the December 2014 request” from DOE to Idaho Governor Otter and Idaho Attorney General Lawrence Wasden seeking a waiver “of paragraph D.2.e of the 1995 Settlement agreement, ” which “prohibit DOE from shipping commercial spent nuclear fuel to INL (with one exception not relevant here).” See Letter from Laird Lucas to Shonda Humphrey, DOE, March 18, 2015, Dkt. 11-5, Ex. 2. Andrus also agreed that the search would be limited to the time period between January 1, 2012, and January 22, 2015. See E-Mail from Laird Lucas to Shonda Humphrey, DOE, April 28, 2015, Dkt. 11-5, Ex. 3. It wasn’t until July 10, 2015 that the DOE sent “a final response” for four of the five offices within DOE from which documents were collected, but stated that the fifth office would respond separately. Included in the DOE response was a letter and an index of the forty-one documents released under the FOIA request. Letter from Alexander C. Morris to Cecil D. Andrus, July 10, 2015, Dkt. 11-5, Ex. 4.

         Of those forty-one documents initially released, the DOE had redacted information from thirty of the documents under Exemption 5 of FOIA. See Vaughn Index, December 18, 2015, Dkt. 16. 5. Exemption 5 of FOIA protects “inter-agency or intra-agency memorandums 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). The agency specifically stated that the information was redacted to protect three specific privileges: the deliberative process privilege (executive), attorney-client privilege, and attorney work product privilege.

         Dissatisfied with the information provided by DOE, Andrus filed an administrative appeal with the DOE’s Office of Hearings and Appeals. Andrus alleged the DOE had not sufficiently disclosed the reasoning behind its redactions in the documents released. The appeal requested that the DOE either “release all of the information withheld under Exemption 5” or “provide specific descriptions of the material withheld from each redacted document, the consequences of releasing those materials, and why disclosing the information is not in the public interest.” See Letter from Laird Lucas to Director Marmolejos, August 10, 2015, Dkt. 11-5, Ex. 5.

         On August 20, 2015, the DOE Office of Hearings and Appeals denied Andrus’s appeal, stating that the decision was “a final order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provisions of 5 U.S.C. § 552(a)(4)(B).” The order held that the DOE had provided sufficient information for Andrus to understand the DOE’s basis for withholding information under Exemption 5 by agency standards, and that the release of the documents “could cause the harm of chilling open and frank discussions, limit government personnel's range of options to consider, and thus detract from the quality of Agency decisions.” Letter from Alexander C. Morris to Cecil D. Andrus, July 10, 2015, Dkt. 11-5, Ex. 4. Andrus filed an initial Complaint with the Court on September 29, 2015. See generally Compl. Dkt. 1.

         The Complaint sought relief under FOIA, alleging that the DOE’s redactions under Exemption 5 were unlawfully invoked and unjustified, amounting to a FOIA violation under 5 U.S.C § 522(a). Compl. ¶ 43-44. The Complaint also sought a second claim under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. Andrus alleges that the “failure and refusal to release the requested information in the public’s interest violates its own regulations” and is “arbitrary, capricious, an abuse of discretion, not in accordance with the law and constitutes agency action unlawfully withheld or unreasonably delayed under the APA.” Compl. ¶ 46.

         On October 5, 2015, DOE disclosed an additional thirty-eight documents from the fifth and final DOE office. Similar to the July 10 disclosure, thirty-three of the responsive documents were redacted under FOIA Exemption 5, citing the deliberative process privilege, the attorney-client privilege, and the attorney work product privilege as the specific reasons for exemption. See Letter from Alexander C. Morris to Cecil D. Andrus, Dkt. 11-5, Ex. 6.

         Andrus did not seek an administrative appeal following the second release of the thirty-eight documents. Instead, Andrus filed an Amended Complaint with the Court on October 19, 2015. See Am. Compl. The Amended Complaint incorporated the October 5 release of documents and cited DOE’s redactions as insufficiently justified and therefore in violation of FOIA and the APA. Id. at ¶ 44-49. Andrus also amended his complaint to allege an additional claim for a failure to timely respond to his FOIA request, in addition to the unlawful application of FOIA exemptions claim and the APA claim. Id. ¶ 50-61 (emphasis added).

         Most recently, DOE made a third disclosure on April 8, 2016, of eight documents that had previously been withheld. Pl.’s Reply at 7. This disclosure was apparently in response to plaintiff’s assertion in his Response Brief that DOE had not turned over all relevant documents, although the DOE characterizes the release as a “discretionary release.” Def’s Reply at 10, fn. 5.

         DOE filed a motion for summary judgment seeking an order 1) dismissing Andrus’s claim that DOE failed to timely respond to his FOIA claim as moot, 2) dismissing Andrus’s APA claim because FOIA provides an adequate remedy, and 3) grant summary judgment on Andrus’s claim challenging the agency’s withholdings under Exemption 5. See generally Def’s Br. Dkt. 11-1. Andrus subsequently filed Cross-Motions for Summary Judgment for all three Claims for Relief on the basis that 1) DOE’s untimely response to Andrus’s FOIA request was a violation of the statute, 2) DOE failed to carry its burden of proof regarding the Exemption 5 redactions, and 3) DOE’s failure to release all relevant documents in the “public interest” under its own regulations was a violation of the APA. See generally Pl’s Resp. Dkt. 15-1.

         LEGAL STANDARD

         Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). One of the principal purposes of the summary judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural shortcut, ” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact - a fact “that may affect the outcome of the case.” Id. at 248.

         When cross-motions for summary judgment are filed, the Court must independently search the record for factual disputes. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The filing of cross-motions for summary judgment - where both parties essentially assert that there are no material factual disputes - does not vitiate the court’s responsibility to determine whether disputes as to material fact are present. Id.

         The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)(en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).

         This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324.

         However, the Court is “not required to comb through the record to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quotation omitted). Instead, the “party opposing summary judgment must direct [the Court’s] attention to specific triable facts.” Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).

         In FOIA cases, “Courts are permitted to rule on summary judgment…solely on the basis of government affidavits describing the documents sought.” Lion Raisins v. United States Dep’t of Agriculture, 354 F.3d 1072, 1082 (9th Cir. 2004). The government has the burden of defending its actions and ordinarily “the government must submit detailed public affidavits identifying the documents withheld, the FOIA exemptions claimed, and a particularized explanation of why each document falls within the claimed exemption.” Id. Such submissions must be “detailed enough for the district court to make a de novo assessment of the government’s claim of exemption.” Id.

         ANALYSIS

         1. Exhaustion

         DOE alleges that Andrus did not fully exhaust his administrative remedies regarding the October 5, 2015 FOIA disclosure. Because DOE asserts that exhaustion is a jurisdictional requirement, the Court shall address that issue first. It is undisputed that Andrus exhausted his administrative remedies pertaining to the documents released on July 10, 2015. However, DOE did not have the same opportunity to fully review the thirty-eight documents belatedly disclosed by DOE on October 5, 2015. Andrus had already initiated this litigation regarding the July 10, 2015 documents when DOE released the final documents in October. See generally Compl. After Andrus received the October documents, he did not file a second appeal to the DOE Office of Hearings and Appeals. Instead, Andrus amended his initial complaint to reflect the newly obtained documents. See Am. Compl ¶ 44-46. Thus, the DOE Office of Hearings and Appeals did not have an opportunity to review the thirty-eight documents belatedly released on October 5, 2015.

         Of preliminary concern to the Court is the contention that there is a split among the United States Court of Appeals regarding the issue of whether exhaustion under FOIA is a jurisdictional requirement, or rather “a prudential consideration that the court takes into account in determining whether to exercise subject matter jurisdiction.” McDonnell v. United States, 4 F.3d 1227, 1240 at fn. 9. (3rd Cir. 1993). Significantly, ...


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