In the United States Court of Federal Claims

No. 17-67 L

Filed: February 28, 2023

)

UNITED AFFILIATES CORPORATION and )

MINGO LOGAN COAL LLC, )

)

 Plaintiffs, )

)

 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 Justice, 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 Government is withholding under the deliberative process privilege. In the 

last round of briefing, Plaintiffs argued that the Government could not, as a matter of law, assert 

the deliberative process privilege in this case. The Court denied Plaintiffs’ motion, explained 

that the Court must analyze the privilege issue on a “document-by-document” basis, and allowed 

the Plaintiffs the opportunity to move to compel the production of “specific documents.” 

Despite the Court’s order, the Plaintiffs have come back and seek the release of entire categories 

of documents without addressing specific documents. Instead, the Plaintiffs rely exclusively on 

the Government’s declarations asserting the privilege, but ignore the privilege logs, which appear 

to provide information Plaintiffs claim is missing from the declarations. The Court is left unable 

to conduct the required document-by-document analysis—there are no arguments about or 

descriptions of specific documents. And because neither party has put the privilege logs before 

the Court (other than for the one document Plaintiffs identify by Bates number), the Court cannot

even state what the documents are that Plaintiffs claim the Court should compel the Government 

to produce. The Court will not speculate about the specific documents or their contents and, 

therefore, must deny the Plaintiffs’ motion that fails to comply with 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 Plaintiffs’ motion to compel is 

without prejudice to Plaintiffs moving to compel the production of specific documents based on 

the Government’s declarations and privilege logs, explaining why they have a strong need for 

each document.

I. Background1

Plaintiff United Affiliates owns the land and mineral rights associated 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 approximately ten-year application process, which 

included an extensive environmental impact study, the Government, 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. Id. 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 in 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, the parties have engaged in extensive motions practice, a 

fair amount of which has been piecemeal and repetitive. As an example, the Plaintiffs filed a 

motion to compel that challenged numerous privilege claims by the Government. ECF Nos. 69-

70. In that motion to compel, the Plaintiffs challenged the Government’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 Government was already scheduled 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 Plaintiffs’ alleged deficiencies, the Plaintiffs 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 Government had already addressed these 

exemplars as well. As the Court found, this “Whac-a-Mole discovery” was inefficient and would 

not continue. Id. at 341. Thus, the Court recognized that the Plaintiffs would “soon file a third 

motion to compel,” but that “there will not be a fourth.” Id. at 340 (emphasis in original).

This next round of briefing was to address procedural issues with the Government’s 

assertion of the deliberative process privilege that this Court found with the initial declarations 

provided by the Government. The Government has since provided new declarations, ECF Nos. 

121-3 & 121-4, and this round of briefing challenging the Government’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 

rooted 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 (2001)); see also Kaiser 

Aluminum & Chem. Corp. v. United States, 141 Ct. Cl. 38, 49 (1958). The deliberative process 

privilege shields “documents reflecting advisory opinions, recommendations and deliberations 

comprising part of a process by which governmental 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 investigative 

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 cases). “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)).

The Plaintiffs’ 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 compel 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 deliberative 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).

The Circuit also explains “that a party 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, Plaintiffs 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. While it is true 
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that In re United States uses “executive privileges” 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 Plaintiffs’ claims in this case. And to assess whether Plaintiffs 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).

The Plaintiffs’ motion does not allow the Court to perform a document-by-document 

analysis because the Plaintiffs 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 Government’s declarations. Plaintiffs explain that because they do not have 

the privileged documents themselves, they cannot 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 any 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 Plaintiffs’ argument is that it lacks any limiting principal—it is true 

in every deliberative process case (indeed in every privilege dispute) that the moving party has 

less information about the disputed documents than 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 Plaintiffs rely, supports such a position. Rather 

than require plaintiffs to challenge the Government’s privilege assertions generally and with no 

information, Judicial Watch recognizes that the Vaughn index2 both requires the Government to 

carefully analyze the documents that it withholds and “enables the adversary system to operate 

by giving the requester as much information as possible, 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 index in the FOIA dispute in Judicial Watch. Therefore, the Court cannot agree that 

Plaintiffs should be excused from making document-specific arguments based solely on the 

Government’s declarations because they do not have as much information about the withheld 

documents as the Government has. This is especially so in this case because the Plaintiffs have 

neither challenged (indeed, they have not even mentioned) nor put before the Court the 

Government’s privilege logs.

The Plaintiffs’ singular focus on the Government’s privilege declarations to the exclusion 

of other information only demonstrates the problem. For example, Plaintiffs fault the 

government declarations because, although they assert privilege over certain internal 

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 effect.” ECF No. 121 at 32. But 

2 In litigation under the Freedom of Information Act, when the government 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.
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the Government provided answers to these issues in its privilege logs. As the Government 

explains, the answers to these questions are set forth in the privilege logs and the Plaintiffs’

ignoring of those logs does not vitiate the assertion of the privilege. See ECF No. 127 at 37. To 

make its point, the Government provided an exemplar of a document, US_SPRUCE0859501,

that is one of the documents in subcategory 3.7 that the Government is withholding on 

deliberative process grounds. Id. To answer the Plaintiffs’ 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 Government’s declarations asserting the privilege

because the Government also provided privilege logs with descriptions of each individual 

document the Government withheld on privilege grounds. And “[a]gencies seeking to invoke the 

deliberative process privilege 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, 309 (D.D.C. 2009) (citations omitted); cf. Pub. Emps. for Env’t Resp. v. United 

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 Government’s 

assertion of the privilege improper.

Plaintiffs also argue that the Government’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 applicable legal standard.” ECF No. 121 at 28. The Government 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 Government 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. United 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 Plaintiffs further contend that because the Government is withholding approximately 

8,000 documents as Category 14 documents, it must 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 

Government contends, that 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 

documents in the privilege logs to review, the Court cannot conclude that the Government 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.

Plaintiffs also argue that 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 Government to withhold documents from production, not simply one that 

prohibits publication.

Finally, during oral argument, Plaintiffs 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 privileged, the Court would assume that the Government asserted privilege in 

response to a FOIA request. There is nothing nefarious about the Government asserting 

privilege here as well. One would expect it. To the extent Plaintiffs 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 Court must deny the Plaintiffs’ motion to compel. This, of course, begs the question of 

whether Plaintiffs should be allowed yet another chance to challenge the Government’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 Plaintiffs raise a challenge to the Government’s existing privilege claims. 

United Affiliates Corp., 154 Fed. Cl. at 340 (“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 not 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 Government 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 Government does not attempt to assert the privilege over 

Category 1 writ-large; rather, it asserts the privilege as to the sub-subcategories that are relatively 

narrow-tailored groups of like documents.
7

unable to evaluate Plaintiffs’ challenges to the Government’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 deny Plaintiffs’ motion without prejudice to 

their filing a motion to compel specific 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 Plaintiffs’ motion to compel, ECF No. 

120.

IT IS SO ORDERED.

s/Edward H. Meyers

Edward H. Meyers

Judge

5 To the extent that Plaintiffs 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 deliberative 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.