United States District Court, D. Idaho
CECIL D. ANDRUS, Plaintiff,
UNITED STATES DEPARTMENT OF ENERGY, Defendant.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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
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).
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.
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).
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.
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.
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, ...