# In the United States Court of Federal Claims

No. 17

- 67 L Filed: February 28, 2023

) UNITED AFFILIATES CORPORATION and ) MINGO LOGAN COAL LLC, ) ) Plaintiff s , ) )

v. ) ) THE UNITED STATES, ) ) Defendant

. ) )

Kevin P

. Holewinski

, Jones Day
, Washington, D

. C

. , for Plaintiff United Affiliates Corporation

. Daniella Einik and Jon G. Heintz , of counsel.

Robert M

. Rolfe

, Hunton & Williams LLP

, Richmond, VA , for Plaintiff Mingo Logan Coal LLC

. George P. Sibley, III , of counsel.

Joshua P

. Wilson

, U.S. Department of Justic e, Environment and Natural Resources Division

, Natural Resources Section, Washington, D.C., with whom were Todd Kim , Assistant Attorney General, Erika Norman and Hanna O’Keefe , of counsel, for the Defendant

.

OPINION AND ORDER

Pending before the Court is the latest in a series of motions to compel the production of documents that the G overnment is withholding under the deliberative process privilege. In the last round of briefing, P laintiffs argued that the G overnment could not , as a matter of law, assert the deliberative process privilege in this case. The Court denied P laintiffs’ motion, explained that the Court must analyze the privilege issue on a “document

- by

- document” basis, and allowed the P laintiffs the opportunity to m ove to compel the production of “specific documents.” Despite the Court’s order, the P laintiffs have come back and seek the release of entire categories of documents with out addressing specific documents. Instead, the P laintiffs rely exclusively on the G overnment’s declarations asserting the privilege, but ignore the privilege log s , which appear to provide information P laintiffs claim is missing from the declarations. The Court is left unable to conduc t the required document

- by

- document analysis

— t here are no arguments about or descriptions of specific documents. And because neither party has put the privilege log s before the Court (other than for the one document P laintiffs identify by Bates number), the Court cannot even state what the documents are that P laintiffs claim the Court should compel the G overnment to produce . The Court will not speculate about the specific documents or their contents and, therefore, must deny the P laintiffs’ motion that fails to comply w ith this Court’s prior instruction.2 That said, and despite the fact that the Court previously stated that there would be no further argument regarding these privilege issues

, the Court’s denial of P laintiffs’ motion to compel is without prejudice to P lain tiffs moving to compel the production of specific documents based on the G overnment’s declarations and privilege logs, explaining why they have a strong need for each document.

I. Background 1

Plaintiff United Affiliates owns the land and mineral rights assoc iated with the Spruce No. 1 mine in West Virginia. United Affiliates Corp. v. United States , 147 Fed. Cl. 412, 415

- 16 (2020). Mingo Logan entered a lease with United Affiliates to operate a coal mine known as the Spruce No. 1 mine. Id . Following an app roximately ten

- year application process, which included an extensive environmental impact study, the G overnment, acting through the U.S. Army Corps of Engineers, granted Mingo Logan a permit in 2007 pursuant to § 404 of the Clean Water Act that allowed it to discharge fill material from the Spruce No. 1 mine into nearby
streams. I d . Section 404(c) of the Clean Water Act, however, grants the Environmental Protection Agency (“EPA”) authority to withdraw the issuance of a permit. 33 U.S.C. § 1344(c). And i n 2011, the EPA exercised its authority and withdrew the permit insofar as it allowed the discharge of fill material into the Pigeonroost and Oldhouse Branch streams. Id. This lawsuit followed.

Almost since discovery began, t he parties have engaged in extensive motions practice, a fair amount of which has been piecemeal and repetitive. As an example, the P laintiffs filed a motion to compel that challenged numerous privilege claims by the G overnment. ECF Nos. 69

- 70. In th at motion to compel, the P laintiffs challenged the G overnment’s privilege assertions but provided only “representative examples of th[e] deficienc[ies]” that they challenged

. E.g. , ECF No. 70 at 19. At the time of the motion, the G overnment was already sche duled to issue revised privilege logs the following week, which it did. United Affiliates Corp. v. United States , 154 Fed. Cl. 335, 340 (2021). Given that the revised privilege logs addressed the representative examples of P laintiffs’ alleged deficiencie s, the P laintiffs filed a supplemental memorandum in support of their motion, which made the same arguments but provided new exemplars of the alleged deficiencies. Id . By oral argument, the G overnment had already addressed these exemplars as well. As th e Court found, this “Whac

- a

- Mole discovery” was inefficient and w ould not continue. Id. at 341. Thus, t he Court recognized that the P laintiffs would “soon file a third motion to compel,” but that “there will not be a fourth.” Id . at 340 (emphasis in ori ginal)

. This next round of briefing was to address procedural issues with the G overnment’s assertion of the deliberative process privilege that this Court found with the initial declarations provided by the G overnment. The G overnment has since provided ne w declarations

, ECF Nos. 121

- 3 & 121

- 4 , and this round of briefing challenging the G overnment’s assertion of the deliberative process privilege followed.

II. Discussion

1 Because the facts of this case have been set forth in several prior opinions, the background here is only that relevant to the resolution of this motion.3 The deliberative process privilege is an executive privilege that “protect[s] agencies from being ‘ forced to operate in a fishbowl .’” United States Fish & Wildlife Serv. v. Sierra Club, Inc.

, 141 S. Ct. 777, 785 (2021) (quoting EPA v. Mink , 410 U.S. 73, 87 (1973)) . “The privilege is
root ed in ‘the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.’” Id . (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n , 532 U.S. 1, 8

- 9 (20 01)); see also Kaiser Aluminum & Chem. Corp. v. United States , 141 Ct. Cl. 38, 49 (1958). T he deliberative process privilege shields “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmen tal decisions and policies are formulated.” Sierra Club , 141 S. Ct. at 785 (internal quotation marks omitted) (quoting N

. L

. R

. B

. v. Sears , 421 U.S. 132, 150 (1975) ). In other words, the privilege “protects from disclosure documents generated during an agency’s deliberations about a policy, as opposed to documents that embody or explain a policy that the agency adopts.” Id . at 783. But documents containing investigati ve information or facts without revealing the Government’s decision

- making processes are discoverable and not protected under the deliberative process privilege. Confidential Informant 59

- 05071 v. United States , 108 Fed. Cl. 121, 131 (2012) (collecting ca ses). “Like all evidentiary privileges that derogate a court’s inherent power to compel the production of relevant evidence, the deliberative process privilege is narrowly construed.” Pac. Gas & Elec. Co. v. United States (“ Pac. Gas I ”), 70 Fed. Cl. 128, 133, modified on reconsideration , 71 Fed. Cl. 205 (2006) (quoting Greenpeace v. Nat’l Marine Fisheries Serv. , 198 F.R.D. 540, 543 (W.D. Wash. 2000)).

T he P laintiffs’ prior motion to compel the production of all documents the Government withheld under the deliberative process privilege argued that the Government could not assert the privilege in a regulatory takings case. The Court rejected that argument because the Federal Circuit has made clear that the Government may, in fact, assert the privilege in a regulatory takings case. United Affiliates , 154 Fed. Cl. at 342

- 43. More importantly, the Court made clear to the parties that any challenge to the Government’s withholding of documents on privilege grounds would need to challenge “ specific documents ” because the Federal Circuit requires this Court to perform a document

- by

- document analysis when assessing the privilege claim

. Id . at 343 (emphasis in original). This Court relied upon the clear pronouncement of the Circuit that:

In deciding whether to c ompel discovery in the face of asserted executive privileges, the trial court is tasked with addressing, on a document

- by

- document basis, (1) whether the government has established that the invoked privilege applies; (2) how extensive the harm to the delib erative process would be if the documents were disclosed; and (3) whether the benefits of disclosure will, on balance, outweigh the harms.

In re United States , 678 F. App’x 981, 987 (Fed. Cir. 2017) (footnote omitted)

.

T he Circuit also explain s “that a par ty seeking information ‘must make a strong showing of need’ to breach executive privilege and that the information sought must be central to the case.” Id . at 989 (quoting Zenith Radio Corp. v. United States , 764 F.2d 1577, 1580 (Fed. Cir. 1985) )

. During oral argument, P laintiffs countered that the “strong showing of need” language from In re United States comes from a section discussing executive privilege generally and not specifically the deliberative process privilege. ECF No. 132 at 152:22

- 153: 8. W hile it is true4 that In re United States uses “executive privilege s ” to refer to several privileges collectively , 678 Fed. App’x at 987 & n.1, the “strong showing of need” requirement comes from a section dealing solely with the deliberative process privilege, id . at 989 (discussion section C.1 addresses the “Deliberative Process Privilege”)

. Therefore, the Court will apply the In re United States criteria to the P laintiffs’ claims in this case. And t o assess whether P laintiffs have made a strong showing of need , the Court weighs the factors identified in Dairyland Power Co

- op v. United States , 77 Fed. Cl. 330 , 341

- 42 (2007)

.

T he P laintiffs ’ motion does not allow the Court to perform a document

- by

- document analysis because t he P laintiffs do not make document

- specific arguments

. In fact, the Court does not even know the specifics about the disputed documents, only descriptions of groups of documents from the G overnment’s declarations. P laintiffs explain that because they do not have the privileged documents themselves, they canno t argue the relevance of individual documents and their motion “focuses on the representative subcategories of documents that the United States has identified and described in its declarations, and the interests of justice require that the Court resolve an y close calls in the Plaintiffs’ favor.” ECF No. 121 at 9

- 10 (citing Judicial Watch, Inc. v. Food & Drug Admin ., 449 F.3d 141, 146 (D.C. Cir. 2006) (additional citation omitted))

. The problem with P laintiffs’ argument is that it lacks any limiting princi pal

— i t is true in every deliberative process case (indeed in every privilege dispute) that the moving party has less information about the disputed documents tha n the withholding party

. That alone cannot justify foregoing the document

- by

- document analysis based on arguments about each document

.

Not even Judicial Watch

, upon which P laintiffs rely, supports such a position. Rather than require plaintiffs to challenge the G overnment’s privilege assertions generally and with no information

, Judicial Watch recognizes that the Vaughn index 2 both requires the G overnment to carefully analyze the documents that it withholds and “enables the adversary system to operate by giving the requester as much information as possib le , on the basis of which he can present his case to the trial court.” Judicial Watch , 449 F.3d at 146 (quoting Keys v. United States Dep’t of Justice , 830 F.2d 337, 349 (D.C. Cir. 1987)). Here, the privilege log serves the same function as the Vaughn in dex in the FOIA dispute in Judicial Watch

. Therefore, the Court cannot agree that P laintiffs should be excused from making document

- specific arguments based solely on the G overnment’s declarations because they do not have as much information about the wit hheld documents as the G overnment has. This is especially so in this case because the P laintiffs have neither challenged (indeed, they have not even mentioned) nor put before the Court the G overnment’s privilege logs

.
The P laintiffs’ singular focus on the G overnment’s privilege declarations to the exclusion of other information only demonstrates the problem

. For example, P laintiffs fault the
g overnment declarations because

, although they assert privilege over certain intern al communications, “they never explain which staff members [participated in the communications]

, what kind of drafts [they shared] , what kind of input [they provided] , what kind of policy decisions [were at issue], or the nature of the supposed chilling ef fect.” ECF No. 121 at 32. But

2 In litigation under the Freedom of Inform a tion Act , when the g overnment withholds documents from disclosure it lists them on a Vaughn index, which provides descriptive information about each document like the privilege log in this case.5 the G overnment provided answers to these issues in its privilege logs

. A s the G overnment explains, the answers to these questions are set forth in the privilege logs and the P laintiffs ’ ignoring of those logs does not vitia te the assertion of the privilege. See ECF No. 127 at 37. To make its point, t he G overnment provided an exemplar of a document, US_SPRUCE 0859501
, that is one of the documents in subcategory 3.7 that the G overnment is withholding on deliberative process g rounds. Id

. To answer the P laintiffs’ question of which staff members participated in the communications, the privilege log identifies each of the senders, recipients, and people copied on the series of emails. Id

. ; see also ECF No. 127

- 12

. 3 Similarly, the privilege log provides a description of the subject matter of the communications and the policy the government officials were discussing, as well as the dates of the communications. ECF No. 127

- 12.

The Court cannot rely solely on the G ove rnment’s declarations asserting the privilege because the G overnment also provided privilege log s with descriptions of each individual document the G overnment withheld on privilege grounds. And “[a]gencies seeking to invoke the deliberative process privil ege commonly do so through a combination of privilege logs that identify specific documents, and declarations from agency officials explaining what the documents are and how they relate to the decisions. ” N.L.R.B. v. Jackson Hosp. Corp. , 257 F.R.D. 302, 3 09 (D.D.C. 2009) (citations omitted); cf. Pub. Emps. for Env ’t Re s p

. v. U nited States Environmental Protection Agency , No. 18

- CV

- 2219 (BAH), 2021 WL 2515007, at *6 (D.D.C. June 18, 2021) (“An agency may prove the applicability of claimed [FOIA] exceptions through a Vaughn index or supporting affidavits or declarations, or both . . . .”) . The fact that
one must cross

- reference the privilege log and the declaration does not render the G over nment’s assertion of the privilege improper.

Plaintiffs also argue that the G overnment’s privilege declarations fail because they “do not identify any specific harm and set forth only vague, conclusory assertions that do little more than parrot the applica ble legal standard.” ECF No. 121 at 28. The G overnment disagrees because, according to it, the declarations provide the information the law requires and asserting the same foreseeable harm to different categories of documents is permissible. ECF No. 127 at 25

- 26. There is simply no reason that the G overnment may not assert similar, or in some cases the same, articulations of harm for different categories of documents. As a district court recently concluded, the argument that “after using one reason for a particular category, [the government] would be barred from using similar reasoning elsewhere” is “untenable.” Leopold v. United States Dep’t of Just

. , No. 19

- 2796 (JEB), 2021 WL 3128866, at *4 (D.D.C. July 23, 2021) ; see also Judicial Watch , Inc. v. Un ited States Dep’t of Com. , No. 17

- cv

- 1283 (EGS), 2020 WL 6939807, at *5

- 6 (D.D.C. Nov. 25, 2020) (allowing one articulation of harm for multiple categories of documents); Leopold v. United States Dep’t of Just. , 411 F. Supp. 3d 1094, 1105

- 06 (C.D. Cal. 2019) (upholding same articulation of harm for two categories of documents).

3 The excerpt from the privilege log for this one document is the only excerpt from the privilege logs either party put before the Court.6 The P laintiffs further contend that because the G overnment is withholding approximately 8,000 documents as Category 1 4 documents, it mu st provide a more detailed justification of the privilege. It is not clear why this is so. Several of these subcategories are drafts of documents

, which reasonably could share the same foreseeable harm

. It also may well be, as the G overnment contends, t hat there is no “articulable” difference in the potential harm from releasing drafts of the proposed, recommended, and final determinations regarding the Section 404 action. ECF No. 127 at 27. Again, without having the added detail about the withheld doc uments in the privilege logs to review, the Court cannot conclude that the G overnment has failed to carry its burden that the privilege should apply simply because there are a lot of draft documents over which it asserted privilege

.

P laintiffs also argue t hat any potential harm from the disclosure in this case could be mitigated through a protective order. ECF No. 121 at 38. The Court cannot agree because if all that were needed to overcome the deliberative process privilege were a protective order , the Circuit would not require the fact

- specific, document

- by

- document analysis. And the privilege is one that allows the G overnment to withhold documents from production, not simply one that prohibits publication

. Finally, d uring oral argument, P laintif fs indicated that they have tried everything to get these documents, including a FOIA request, and that all their attempts have been unsuccessful. ECF No. 132 at 95:9

- 96:5

. It is not clear what the Court is supposed to make of this. If these documents are privilege d , the Court would assume that the G overnment asserted privilege in response to a FOIA request. There is nothing nefarious about the G overnment asserting privilege here as well. One would expect it. To the extent P laintiffs are unsatisfied with the FOIA responses they got, their remedy lies in the appropriate district court.

Because the Court cannot address the privilege issues in the manner precedent requires, the Cou rt must deny the P laintiffs’ motion to compel. This, of course, begs the question of whether P laintiffs should be allowed yet another chance to challenge the G overnment’s assertion of the deliberative process privilege. In the Court’s last opinion and in oral argument on the present motion, the Court stated emphatically that the present motion would be the last time the Court would hear P laintiffs raise a challenge to the G overnment’s e xisting privilege claims. United Affiliates Corp. , 154 Fed. Cl. at 34 0 (“But three things are clear. First, the Government has been and remains willing to resolve Plaintiffs’ objections to its log entries. Second, there is a strong likelihood that Plaintiffs will soon file a third motion to compel. Finally, there will no t be a fourth.”); ECF No. 132 at 159:7

- 160:5 (“[U]nless there’s something really egregious that Mr. Holewinski can point me to, we’re not doing privilege again.”). Given that the Court has been

4 In the prior round of briefing on privilege issues, the Court agreed that the G overnment could group like documents together and the declarations could apply to the categories or subcategories of documents collectively, so long as the categories were sufficiently narrow to limit them to truly like documents. United Affiliates Corp.

, 154 Fed. Cl. at 347 . Category 1, which includes multiple sub

- and sub

- sub

- categories, includes documents that are internal correspondence and drafts of agency documents. The G overnment does not attempt to assert the privilege over Category 1 writ

- large ; rather, it asserts the privilege as to the sub

- sub categories that are relatively

narrow

- tailored groups of like documents.7 unable to evaluate P laintiffs’ challenges to the G overnment’s assertion of privilege on the document

- by

- document basis that precedent requires, the Court concludes that the proper resolution here, despite its prior admonitions, is to den y P laintiffs’ motion without prejudice to their filing a motion to compel specif ic documents that explains why each challenged document should be disclosed under the test set forth in In re United States , 678 Fed. App ’ x at 987

- 88

. 5 That said, the Court will not hear challenges to other privilege assertions ( i.e. , other than deliberative process privilege) that could have been raised in the present motion but were not

. For the reasons stated above, the Court denies the P laintiffs’ motion to compel, ECF No. 120.

IT IS SO ORDERED.

s/ Edward H. Meyers Edward H. Meyer s Judge

5 To the extent that P laintiffs seek to compel disclosure of specific documents, they should be aware that it will not be enough to rely solely upon Judge Wheeler’s Order granting discovery beyond the administrative record from the D.C. Circuit litigation. While Judge Wheeler found that certain documents would be relevant, he did not find this relevance sufficient to overcome the del iberative process privilege. In fact, Judge Wheeler recognized that it was premature to address privilege at that time and explicitly declined to do so. ECF No. 65 at 7.