[00:00:01] Speaker 00: Case number 18-8241, Hall and Associates employer requester, Ballent, versus Environmental Protection Agency. [00:00:10] Speaker 00: Mr. Hall, party of Ballent, Ms. [00:00:12] Speaker 00: Myron, for the appellee. [00:00:29] Speaker 03: May it please the court, my name is John. [00:00:31] Speaker 04: Let's let the courtroom clear first. [00:01:01] Speaker 04: All right, Mr. Hall, good morning. [00:01:03] Speaker 03: Very good. [00:01:04] Speaker 03: Thank you, Your Honor. [00:01:05] Speaker 03: May it please the Court, my name is John Hall. [00:01:07] Speaker 03: I'm counsel for Hall & Associates. [00:01:09] Speaker 03: This case concerns a foreign request that sought records pertaining to EPA's position on the national applicability of the Eighth Circuit decision in Iowa League of Cities. [00:01:20] Speaker 03: The lower court's ruling granting EPA partial summary judgment should be reversed for three reasons. [00:01:26] Speaker 03: One, EPA lacked a nonconclusory affidavit in support of withholding. [00:01:32] Speaker 03: Two, the court improperly applied a formal announcement test to determine when the agency's decision had been rendered, by the way, which was never even raised by either party as a basis for withholding. [00:01:44] Speaker 03: And three, the court never applied a like most favorable analysis to the entire record in concluding that EPA should be granted partial summary judgment. [00:01:58] Speaker 03: So on those three grounds, we believe reverse is appropriate. [00:02:02] Speaker 03: I would note further that EPA did not appeal the decision. [00:02:07] Speaker 03: So the following points of the district court's determination are uncontested. [00:02:13] Speaker 03: One, EPA withheld the records solely on the claim that it never rendered a non-acquiescence decision. [00:02:22] Speaker 03: Two, EPA's only support of this position was a declaration the court determined was conclusory [00:02:30] Speaker 03: and in fact contrary to a plethora of agency records that were submitted by appellants. [00:02:38] Speaker 03: So in the face of these findings, it's simply improper to award EPA partial summary judgment because EPA bears the burden of proving the applicability of the claimed exemption [00:02:50] Speaker 03: with a non-conclusory affidavit. [00:02:53] Speaker 03: This is black-letter law. [00:02:55] Speaker 03: Under those circumstances, normally there's only two options that happen once a court determines the affidavit's conclusory. [00:03:02] Speaker 03: Either you direct the agency to go back and come back with a non-conclusory affidavit and give them the second bite of the apple, if you will, [00:03:11] Speaker 03: to make the decision and to justify the decision, or you order the release of the records. [00:03:19] Speaker 03: Those are the two options that courts should never have gone in and then conducted a further analysis of the records to then give the rationale [00:03:31] Speaker 03: of what is the precise date when the decision was rendered. [00:03:36] Speaker 03: EPA never submitted anything on that. [00:03:38] Speaker 05: So your position is that once the District Court concluded that in fact a non-acquiescence position had been adopted at the time they decided to do what they called a case-by-case approach outside the Eighth Circuit, at that point when the District Court [00:03:58] Speaker 05: explained to them the law of non-acreasins that should have then had them go back to the drawing board and do another affidavit that said, well, when did that decision take place? [00:04:08] Speaker 03: Yes, Your Honor, specifically that. [00:04:09] Speaker 03: And as a matter of fact, that's one of the reasons we submitted a request for discovery. [00:04:15] Speaker 03: The factual issue that was remaining at that point was, so precisely when did this [00:04:22] Speaker 03: decision occurred. [00:04:23] Speaker 03: There's little question that when the agency sent a media release to out saying we are not going to apply this decision outside the AIDS survey, no question the decision was [00:04:37] Speaker 03: clearly in place at that point. [00:04:38] Speaker 03: The question is, at what point prior to that, prior to the release of that record, was it made? [00:04:44] Speaker 03: And that, we thought, required discovery, and that's why we asked for it. [00:04:48] Speaker 05: Well, that's why I was trying to clarify your position, because you talked about discovery and some in your brief, but here you were saying, no, the correct response once the district court said, [00:04:58] Speaker 05: Let me explain to you what non-acquiescence means. [00:05:02] Speaker 05: And when it means you're not new in the Eighth Circuit outside the Eighth Circuit, you've non-acquiesced. [00:05:06] Speaker 05: And so at that point, I thought you said then what happened to the agency should have had to go back and say, okay, now justify. [00:05:14] Speaker 05: Now what can you justify as pre-decisional and what not? [00:05:18] Speaker 05: That's not a summary, that's different. [00:05:20] Speaker 03: You're right, you're a bit more precise. [00:05:21] Speaker 03: I was actually moving to the next point of the agency had hotly disputed, of course, whether or not a decision had ever been rendered. [00:05:31] Speaker 03: We had all kinds of records showing about the range of how this decision was made and when it was made. [00:05:36] Speaker 03: I presume the next affidavit would come back and say, hmm, [00:05:41] Speaker 03: Well, okay, we think the decision was made on this specific date and then we had all these records that would have said it's an earlier date. [00:05:49] Speaker 03: So that's where I was going with the discovery point. [00:05:51] Speaker 03: The next thing would have been after that. [00:05:53] Speaker 05: Most likely we would have... What would be discovery or would it just be you would have your arguments that their assertion as to what had happened is flawed and not justified by the record and they would have to substantiate [00:06:06] Speaker 05: bear position as to when that decision was made. [00:06:10] Speaker 05: So you'd have the sort of same arguments you wouldn't have. [00:06:13] Speaker 03: Well, Your Honor, shall we say the details of how this decision was made since it stretched over a, I would say, six-month period from the time the I believe decision was rendered to when they finally issued the death statement. [00:06:31] Speaker 03: that, by the way, that statement was simply a clarification to say, yes, what we said at an earlier meeting in a public meeting was correct. [00:06:42] Speaker 03: That was the purpose of that document. [00:06:44] Speaker 03: So somewhere, actually before even the earlier announcement, [00:06:49] Speaker 03: we believe the decision was rendered, I presume we would have had to have found out precisely why was a team of EPA officials sent to EPA Region 7 to talk about how the Iowa League case would only apply in the Eighth Circuit, and when you look at the EPA announcement more carefully, which the district court truncated, by the way, [00:07:13] Speaker 03: EPA said it only applies in the Eighth Circuit, and the next statement was Kansas in Region 7 is outside, not there, because it's outside the Eighth Circuit. [00:07:24] Speaker 03: So we felt that at that point they clearly had sent the team to deliver the message, which meant somebody made the decision before the team was sent. [00:07:33] Speaker 03: And all the records at issue, every single one was prepared after. [00:07:39] Speaker 03: that decision was made in the intergovernmental meeting in EPA Region 7. [00:07:45] Speaker 03: But in any event, you're correct. [00:07:46] Speaker 03: It should have been kicked back. [00:07:48] Speaker 03: EPA should have [00:07:49] Speaker 03: submitted whatever it was going to submit next. [00:07:52] Speaker 03: And the court should not have created the decision date, per se. [00:07:58] Speaker 03: Other area that really was serious by the court was applying a formal announcement test to determine when the decision had been rendered. [00:08:12] Speaker 03: The court need only look at page one of the opinion. [00:08:15] Speaker 03: It says right on the face of page one. [00:08:19] Speaker 03: For the purpose of the Freedom of Information Act, records that reflect an agency's internal deliberations prior to its non-acquiescence announcement are fairly deemed both pre-decisional and deliberative. [00:08:32] Speaker 03: And the court, throughout its analysis, kept looking for this. [00:08:36] Speaker 03: Sometimes they called it a formal announcement. [00:08:39] Speaker 03: Sometimes they called it a public announcement. [00:08:41] Speaker 03: But they always said, the decision's not rendered until you announce it. [00:08:46] Speaker 03: The case law is very clear in this circuit. [00:08:49] Speaker 03: There is no formal announcement requirement. [00:08:52] Speaker 03: When you're deciding when a decision is rendered, you look at the facts. [00:08:57] Speaker 03: You look at the agencies back and forth. [00:08:59] Speaker 03: You look at their actions. [00:09:00] Speaker 03: Are they implementing a decision? [00:09:02] Speaker 03: Is there evidence of that, which we had ample before the court? [00:09:07] Speaker 03: And you decide in light most favorable to the requester when you believe the decision was rendered. [00:09:15] Speaker 03: I would point out that this formal announcement issue got compounded by the court. [00:09:22] Speaker 03: No one ever argued this. [00:09:24] Speaker 03: EPA certainly didn't say a decision's not final until it's, a decision's not rendered until it's formally announced. [00:09:31] Speaker 03: The court created this one all on its own, and that was a violation of Rule 56F. [00:09:36] Speaker 03: We were never even given an opportunity to argue that that's not the correct standard that applies. [00:09:46] Speaker 03: The court just did its sua sponte. [00:09:49] Speaker 05: Do you think the Stieberger test is the right test for non-acquiescence? [00:09:59] Speaker 05: The Steberger test, do you think that's the right test for non-acquiescence? [00:10:03] Speaker 03: I would say it gives some characteristics of, you know, where an agency says, I'm limiting a decision to the circuit that it's... Or it's a pervasive disregard, I don't know. [00:10:13] Speaker 03: Oh, well, there's two ways, I guess, sometimes non-acquiescence pops up. [00:10:18] Speaker 03: Sometimes you're not sure what an agency is going to do, and then you look at their actions thereafter, and then in other cases that come up, they continue to argue the same position they had before. [00:10:29] Speaker 03: In this particular case, we didn't have that at all. [00:10:32] Speaker 03: The agency met internally, decided the Eighth Circuit decision was improperly decided, and started staking out its approach to this is how we're going to non acquiesce, how we're going to keep our what they call their existing regulatory interpretation. [00:10:52] Speaker 03: And I might note to the court the words case by case [00:10:56] Speaker 03: don't appear anywhere in the death statement, in the document the court looked at. [00:11:03] Speaker 03: EPA came up with, and oh, by the way, the decision will be case by case. [00:11:09] Speaker 03: I've done administrative cases for enough years, and I know this court has done more. [00:11:14] Speaker 03: And there's a line of cases when somebody says, well, we're doing case by case, kind of gives you an opportunity to maybe avoid review, because you can point to that and say, obviously, I haven't made a decision yet. [00:11:28] Speaker 03: That's not really true in this case. [00:11:30] Speaker 05: I'm just trying to, under your theory, after the district court, [00:11:35] Speaker 05: determined that non-acquiescence had been made at least no later than November 19th in your view, I guess, would be no later than. [00:11:43] Speaker 05: And then we should go back and they should do it again. [00:11:45] Speaker 05: It seems to me at some point the standard for non-acquiescence is going to be important for them to establish when [00:11:52] Speaker 05: it actually happened, and that's why I was asking you about the Stieberger test, which is not from this court. [00:11:58] Speaker 03: I mean, Stieberger, it's basically, let's just go with what the definition of non-acquiescence is, a decision to not apply or adhere to a court decision in other jurisdictions. [00:12:13] Speaker 03: OK, that's the legal, we'll call that the legal definition. [00:12:16] Speaker 03: I think Stieberger was talking about [00:12:19] Speaker 03: how you determine whether non-acquiescence was done, not when, but whether the agency made an announcement. [00:12:28] Speaker 03: It talked about more. [00:12:29] Speaker 05: So when you say, right, because at least as the district court describes it, Stehberger has two prongs. [00:12:34] Speaker 05: Certainly there's two ways of showing non-acquiescence, a formal announcement, which is what she found here. [00:12:39] Speaker 05: or deliberate pervasive and ongoing manner in which they aren't following it. [00:12:46] Speaker 05: And what I'm, right, so I think your position is, so I'm not sure if she was making a public announcement rule as opposed to saying that prong of the Steve Berger test is what's applied here. [00:12:57] Speaker 05: And the other one being deliberate, pervasive, and ongoing. [00:13:00] Speaker 05: That's why I'm asking you about the test. [00:13:02] Speaker 05: And I'm not sure the problem here is, as you say, it's a public announcement test, unless you think the Stieberger is not even getting the quiet measure, because Stieberger's articulation is not the one you just gave. [00:13:15] Speaker 03: As I recall, the precise language of Stieberger was something along the line. [00:13:21] Speaker 03: My co-counsel has the case, so I can go back to it. [00:13:25] Speaker 03: He said, normally, an agency will either announce its position, so that was kind of the lead-in, or you'll find this pervasive. [00:13:36] Speaker 03: And then the court grabbed the announced... Well, Mr. Pierce said both halves of it, and found that this was a first-prong case. [00:13:42] Speaker 03: Yeah, I mean, to the degree a formal announcement [00:13:47] Speaker 03: would identify non-acquiescence, oh sure, it certainly would. [00:13:52] Speaker 03: It just doesn't tell you when the decision of that was made. [00:13:57] Speaker 03: Suppose, and here's the case at point, the death statement that gets put out on the 19th. [00:14:04] Speaker 03: Suppose the death statement had been held by the agency for a year. [00:14:08] Speaker 03: They decided there would be non-acquiescence. [00:14:11] Speaker 03: The internal documents are very clear that they said, we're non-acquiescent. [00:14:16] Speaker 03: But then they don't formally announce it with the death statement. [00:14:21] Speaker 03: They don't send this thing out for a year. [00:14:24] Speaker 03: That doesn't mean they didn't render the decision for a year. [00:14:28] Speaker 03: That just means the formal announcement came out later. [00:14:31] Speaker 03: That's why this circuits case law that says we don't look for a formal announcement. [00:14:36] Speaker 03: in deciding whether an agency has taken a position, we look at the records and see when the agency did this. [00:14:43] Speaker 03: Because if you require a formal announcement, the agency could make all kinds of internal regulatory decisions that it could implement, which you wouldn't be able to get a review of until a formal announcement. [00:14:55] Speaker 03: And so the court very heavily pointed to formal announcements. [00:15:00] Speaker 03: So to the degree, and I guess here's the precise answer, to the degree [00:15:05] Speaker 03: It's believed that Steber is saying you have to have a formal announcement for a non-acquiescence decision. [00:15:13] Speaker 03: Well, that's not true. [00:15:15] Speaker 03: You can make that decision, and whether or not you formally announce it, or you just call up the regional offices and say, hey, we're non-acquiescing. [00:15:24] Speaker 03: Continue to apply the existing regulatory requirements. [00:15:26] Speaker 02: Mr. Hoffman, I ask that you make reference earlier to what I called the November 13 meeting, the annual forestate. [00:15:33] Speaker 02: Governmental Affairs meeting and as I recall that I [00:15:38] Speaker 02: Maybe I didn't get this right, but you were citing that as an example of perhaps the decision had been made by that time. [00:15:46] Speaker 03: Oh, sure. [00:15:47] Speaker 02: I mean, what's your argument? [00:15:50] Speaker 03: The argument is not straightforward, Your Honor. [00:15:52] Speaker 03: EPA headquarters does not send a team of anyone out to Region 7 unless they've decided what they want to do, how they want to do it. [00:16:00] Speaker 03: The moving forward document, which was dated [00:16:03] Speaker 02: But at that meeting, didn't the representative of the EPA say headquarters doesn't have everything figured out yet? [00:16:11] Speaker 03: That's true. [00:16:13] Speaker 03: Just because you don't have everything figured out yet doesn't mean you haven't made the decision, as the example we gave was... What's your evidence that what took place at that meeting showed that a decision had been made? [00:16:25] Speaker 03: EPA specifically said at the meeting [00:16:28] Speaker 03: The Iowa League decision is only applicable in the Eighth Circuit. [00:16:32] Speaker 03: It was quoted in two trade journals, which were part of the record that we submitted. [00:16:40] Speaker 02: I thought the comment was that EPA's current contention is [00:16:45] Speaker 02: that the Iowa League ruling will only be binding, and they haven't worked everything out yet. [00:16:50] Speaker 03: That's one more ambiguous than... Well, Your Honor, and like most favorable, if my current contention is X, that means I've made a decision currently that my position is X. Oh, by the way, I might change my position in the future. [00:17:03] Speaker 02: Contention is, you know... Which they did. [00:17:05] Speaker 02: The semantic difference is different than saying our decision is. [00:17:09] Speaker 02: This suggests it was under debate. [00:17:11] Speaker 02: Discussion going on, final decision had not yet been made. [00:17:15] Speaker 03: I think the record as a whole shows that that is not the case. [00:17:19] Speaker 03: The key record that the district court just never analyzes, the moving forward document dated October 30th, which says, assumption moving forward. [00:17:29] Speaker 03: non-acquiescence outside the Eighth Circuit. [00:17:32] Speaker 03: Then it gave a list of implementation actions that they were going to undertake. [00:17:37] Speaker 03: One of them was go to the regional offices. [00:17:40] Speaker 03: Another one was prepare a memo for release to the rest of the country. [00:17:45] Speaker 03: That's document 1B that they didn't release. [00:17:50] Speaker 03: So they established what they were going to do and how they were going to do it. [00:17:54] Speaker 02: I thought the October 3 meeting said, [00:17:57] Speaker 02: We were going to discuss whether EPA should not acquiesce outside the instrument. [00:18:02] Speaker 03: There were two October 30th meetings. [00:18:04] Speaker 03: Unfortunately, the court focused only on the pre-meeting that occurred in the Office of General Counsel. [00:18:09] Speaker 03: The follow-up meeting after that, specifically, which is what the moving forward document was, which was the General Counsel's office, Office of, I believe, Compliance Enforcement was there, and Office of Water. [00:18:22] Speaker 03: That's where they had the moving forward document. [00:18:24] Speaker 03: And that document, by the way, [00:18:26] Speaker 03: That's exhibit 28 to the record. [00:18:33] Speaker 04: But that's headed by the assumption, right? [00:18:35] Speaker 04: Except the document says assume. [00:18:38] Speaker 03: Yes, it says assumption moving forward. [00:18:41] Speaker 03: And again, I realize I'm out of time. [00:18:43] Speaker 05: It just says clarify the responses. [00:18:46] Speaker 03: light most favorable, our assumption moving forward is we're doing X, and then they start doing X. That's implementation of a decision, and when you realize that the death statement [00:19:02] Speaker 03: was simply issued to confirm what the prior statement was in EPA Region 7. [00:19:11] Speaker 03: It wasn't to create something new. [00:19:13] Speaker 03: They were contacted by BNA to say, you said this isn't going to apply nationwide. [00:19:20] Speaker 03: I'd like an answer back. [00:19:22] Speaker 03: Nancy Soner says, yes, that's what we've already decided. [00:19:26] Speaker 03: Okay, they put out, and I'm going to say this the next day again at the NAWQA conference, you know, taking all that in a light most favorable, I think one could easily have determined the decision had been rendered before these other documents were prepared. [00:19:41] Speaker 03: But again, the court never conducted that analysis. [00:19:44] Speaker 03: It did light most favorable for EPA. [00:19:47] Speaker 03: There's no light most favorable of the record that was submitted by Hall and Associates. [00:19:53] Speaker 03: Thank you. [00:19:54] Speaker 03: If there's no further questions. [00:19:55] Speaker 04: All right. [00:19:56] Speaker 04: Thank you, Mr. Myron. [00:20:07] Speaker 01: Thank you. [00:20:07] Speaker 01: May it please the court, Laura Myron, for the government. [00:20:10] Speaker 01: The record in this case demonstrates, which as you can see on JA 144, an affidavit submitted as part of the summary judgment record, that the records withheld here were draft talking points, their preliminary memoranda. [00:20:23] Speaker 01: They discussed options. [00:20:24] Speaker 01: They discussed possible paths forward for the implementation of this decision. [00:20:29] Speaker 01: And as a result, the district court correctly concluded that their pre-decisional and deliberative and privileged under exemption [00:20:36] Speaker 05: Well, those were all drafted in terms of the agency's view that consciously deciding to have a case-by-case approach outside the Eighth Circuit is not a non-acquiescence decision. [00:20:49] Speaker 05: And if in fact what the district court here held and you have not challenged on appeal is that no, once you decided to go case-by-case outside the Eighth Circuit, that was non-acquiescence, then to the extent all these things were talking about how we're going to implement case-by-case, [00:21:07] Speaker 05: or how that's going to work, that doesn't show that they were pre-decisional to a non-acquiescence decision. [00:21:16] Speaker 05: Maybe they'd be deliberative on a different ground, but you've only argued they were pre-decisional for a non-acquiescence decision. [00:21:22] Speaker 01: Well, respectfully, Your Honor, I don't think that's exactly what the district court said. [00:21:26] Speaker 01: The district court said that the desk statement released on November 19th was a formal announcement of non-acquiescence and relied quite heavily [00:21:33] Speaker 01: on the part of the statement that says, outside the Eighth Circuit, the EPA will work with states to implement, et cetera, et cetera, consistent with the agency's existing interpretation of the regulations. [00:21:43] Speaker 01: And it emphasized that particular language, the existing regulations language, and said that that amounted to a statement of nonacquiescence. [00:21:52] Speaker 01: It did not say that just a sort of case-by-case [00:21:55] Speaker 01: approach in which you're considering all of the options, no actions had yet been taken, inconsistent with the Eighth Circuit's decision would amount to formal announcement of non-acquiescence. [00:22:05] Speaker 05: Well, do you position that when the government announces things it hasn't decided before, it announces them? [00:22:12] Speaker 05: I mean, that's the day it announced it. [00:22:13] Speaker 05: My expectation is that the government decided [00:22:18] Speaker 05: that position before it was announced. [00:22:20] Speaker 05: And in fact, the record here shows that there were talking points and stuff prepared for that announcement. [00:22:25] Speaker 05: So the decision was presumably made some moments before the announcement. [00:22:31] Speaker 01: Well, certainly some moments before the announcement. [00:22:33] Speaker 01: OK, what about one day before? [00:22:35] Speaker 01: But I think the record and the documents in question here specifically show that prior to November 19, there was still ongoing discussion amongst agency decision makers about what the- On November 18? [00:22:47] Speaker 01: I don't know if there's a specific November 18th document, Your Honor. [00:22:50] Speaker 01: But yes, the documents at issue in this case, which are dated before November 19th, do reflect that there is still ongoing discussion. [00:23:00] Speaker 01: There hasn't been a final decision on what the path forward shall be. [00:23:04] Speaker 05: But that all begs the question of what, because again, that declaration came in the context of we haven't made a non-acquiescence decision. [00:23:12] Speaker 05: But in fact, what the district court said was, [00:23:16] Speaker 05: Look, on the 19th, you were clear you were not going to apply the Eighth Circuit decision outside the Eighth Circuit. [00:23:30] Speaker 05: Now, what you were going to do and how things were going to work, that was still to be resolved, but that's a different [00:23:39] Speaker 05: maybe deliberative process than the one about whether we're going to apply the Eighth Circuit decision outside the Eighth Circuit. [00:23:46] Speaker 05: There are two different deliberative processes, and we have no declarations addressing that. [00:23:51] Speaker 05: The declarations are all written in terms of a decision that is rejected, which is that there has not yet been. [00:23:58] Speaker 05: We still have not yet decided. [00:24:01] Speaker 05: what we're doing outside the insertion. [00:24:03] Speaker 01: The declarations, and this is paragraph 17 on page 144, say that the documents reflect internal deliberations among EPA employees about the decision. [00:24:12] Speaker 05: I'm sorry, could you just, is that the supplemental or the renewed? [00:24:15] Speaker 01: I got three niggles. [00:24:16] Speaker 01: Yes, so this is the renewed declaration, which was submitted alongside the renewed motion for summary judgment, not the supplemental declaration. [00:24:26] Speaker 01: It says. [00:24:26] Speaker 01: I'm sorry, what are you reading, where? [00:24:28] Speaker 01: Paragraph 17. [00:24:30] Speaker 01: It says that the records reflect internal deliberations among EPA employees about the Iowa League of Cities decision, including possible ways to interpret the decision, the potential programmatic and regulatory implications of this decision, both within and outside the Eighth Circuit, and how to conduct discussion of these issues internally as well as with the public. [00:24:51] Speaker 01: So it's not the case that all you have here is a declaration that says, [00:24:57] Speaker 01: These documents are pre-decisional to a non-acquiescence decision, and therefore they're privileged. [00:25:03] Speaker 05: Well, we have the Judiciary Court decision that said this decision was November 19th, everything before pre-decisional. [00:25:08] Speaker 05: Yes, Your Honor. [00:25:10] Speaker 05: And so if the district court was wrong, that that was the moment in time when this decision was made, then the rationale given doesn't work. [00:25:19] Speaker 01: No, Your Honor, because the rationale given is not that it was pre-decisional to the November 19th decision. [00:25:25] Speaker 01: It was pre-decisional to a final decision about [00:25:27] Speaker 01: how to move forward following the Eighth Circuit decision, how to implement it. [00:25:33] Speaker 01: This Court has recognized that there need not be a particular final decision in order for documents to be pre-decisional and deliberative, in order for them to reflect and be privileged under Exemption B-5 and appropriately withheld. [00:25:46] Speaker 01: And this Court can [00:25:47] Speaker 01: by looking at the documents as the district court did determine that they in fact are draft talking points, they are draft memoranda, they discuss various options moving forward, and as a result are privileged and properly withheld under the Freedom of Information Act. [00:26:04] Speaker 01: It does not require the agency to go back and say something different. [00:26:09] Speaker 01: As I said, I think what we have submitted here and also what you find in the Vaughn Index on [00:26:14] Speaker 01: beginning on page 155 of the Joint Appendix, walk through how each of these documents reflect the internal deliberations of the agency, and that is sufficient, as this Court has recognized and others have recognized, for the documents to be privileged and appropriately withheld under the Freedom of Information. [00:26:33] Speaker 02: During your friend Mr. Hall's argument, he repeatedly criticized the District Court for not construing the evidence to the light most favorable [00:26:42] Speaker 02: How do you respond to that argument? [00:26:47] Speaker 01: Well, Your Honor, as this Court has said in the FOIA context, where there are affidavits from the agency that explain in detail why the documents were withheld, they go through the various context of the documents and whatnot, that summary judgment may be granted on the basis of those affidavits where there's no evidence of bad faith and where they're not directly contradicted by something else in the record, which is what you have here. [00:27:16] Speaker 01: And so summary judgment was, under this court's FOIA case law, appropriate, as in most FOIA cases, summary judgment is the appropriate mechanism for resolving the case. [00:27:27] Speaker 01: There's no evidence, as the district court found, that the agency acted in bad faith. [00:27:31] Speaker 02: I thought you were going to say something like the determination when what is pre-decision and what is not is a legal question, not a factual question. [00:27:43] Speaker 01: Well, certainly that's also true, Your Honor. [00:27:46] Speaker 01: Perhaps I misunderstood exactly what you were getting at with your question. [00:27:51] Speaker 01: But it is also the case that the question here about whether the documents are privileged and whether they are pre-decisional is a legal question. [00:27:59] Speaker 01: And does it's true? [00:28:00] Speaker 05: Well, it's got to be both, right? [00:28:01] Speaker 05: I mean, the way they qualify is pre-decisional. [00:28:04] Speaker 05: But before you can decide that something's pre-decisional, you have to know the fact of when the decision was made. [00:28:11] Speaker 01: Well, not necessarily, Your Honor. [00:28:13] Speaker 01: And two things in response to that. [00:28:14] Speaker 01: First, it's a question of law as applied to fact, not a straight question of law. [00:28:20] Speaker 01: But it's also not a straight question of fact. [00:28:22] Speaker 01: And you don't need to know when the ultimate decision was made in order to conclude that documents are pre-decisional. [00:28:29] Speaker 01: In fact, as the Supreme Court has recognized, there may never be a final decision. [00:28:33] Speaker 05: If you can tell from the... The never be final decision was rejected by the district court here. [00:28:38] Speaker 05: The district court said a decision was made November 19th. [00:28:41] Speaker 05: When the district court said a decision to non acquiesce was made November 19th, was that a fact finding or was that a legal ruling? [00:28:50] Speaker 01: That was an application of law as applied to fact. [00:28:53] Speaker 01: The district court said... Application of what law? [00:28:55] Speaker 01: What amounts to non acquiescence. [00:28:57] Speaker 01: Yes. [00:28:58] Speaker 01: And so the district court said, and there's no... So she said November 19th, is that a fact? [00:29:03] Speaker 01: There's no question that it's not disputed when the statements were made, what the content of the statements was. [00:29:13] Speaker 01: The only question is, what is the legal significance of that statement? [00:29:16] Speaker 01: And the district court said that it amounted to a statement of non-acquiescence, and that as a result, the other documents after it are no longer pre-decisional. [00:29:29] Speaker 01: And we haven't contested that, and we've released those documents. [00:29:32] Speaker 05: I'm still having a lot of trouble. [00:29:35] Speaker 05: I get that she applied a legal test to determine what non-acquiescence is and found that non-acquiescence was made here. [00:29:44] Speaker 05: But to do that, to apply that legal standard, you have to find some facts. [00:29:49] Speaker 05: And then you apply the legal standard to those facts. [00:29:52] Speaker 05: So you have to find some facts, too. [00:29:54] Speaker 05: And they're just plain of fact findings, correct? [00:29:57] Speaker 05: We can't apply a lot of facts without finding facts. [00:29:59] Speaker 05: Can we agree on that? [00:30:00] Speaker 05: Yes, Your Honor. [00:30:01] Speaker 05: And it was November 19th. [00:30:05] Speaker 05: That was the date. [00:30:06] Speaker 05: She didn't just find that's the date of the desk statement. [00:30:08] Speaker 05: She said that's the date the non-acquiescence decision was made. [00:30:12] Speaker 05: Is that a fact finding? [00:30:14] Speaker 01: What she said was the death statement made on November 19th amounts to a decision of non-acquiescence. [00:30:21] Speaker 05: And that is an application of the- But then she didn't finish her job because she had to decide whether things on November 18th were pre-decisional. [00:30:30] Speaker 05: As she did, she had to find that the decision was made on the 19th. [00:30:34] Speaker 05: Otherwise, she would have to go, fine, the desk statement certainly was, but let's go back and see if anything else was. [00:30:39] Speaker 05: And she didn't do that. [00:30:41] Speaker 01: Well, Laura, there's no question that the desk statement was a decision made on November 19th. [00:30:46] Speaker 01: The question is, what is the legal significance of that decision? [00:30:49] Speaker 01: And does it render the documents that predate that somehow no longer privileged? [00:30:57] Speaker 01: And so the fact finding, it's not a fact finding to say that a statement which is uncontested, released at a time that was uncontested, has the legal significance of amounting to a formal statement of non-acquiescence. [00:31:13] Speaker 01: And so the things that predate that are, in fact, [00:31:16] Speaker 01: privileged because they're pre-decisional and deliberative. [00:31:20] Speaker 01: It does not require the court to go back and say no previous decision was made, especially when you can tell on the face of the decision. [00:31:29] Speaker 01: Doesn't it need to go back and say there was no prior decision either? [00:31:34] Speaker 01: Because on the face of the documents, you can tell that the agency was still debating the various paths forward, that there [00:31:43] Speaker 01: draft documents, that they reflect potential options, that they're unfinished and whatnot. [00:31:48] Speaker 01: And so it was perfect for the court to conclude that documents dated after November 19th were no longer pre-decisional, which we have not contested, and that those documents before that were in fact privileged. [00:32:00] Speaker 05: To which pre-decisional to which decision? [00:32:04] Speaker 05: Whether to non acquiesce? [00:32:06] Speaker 05: When was the decision to non-acquiescence made? [00:32:10] Speaker 01: So the district court said that the formal desk statement, which was released on November 19th, amounted to a statement of non-acquiescence. [00:32:18] Speaker 05: Correct. [00:32:19] Speaker 01: Yes. [00:32:19] Speaker 01: But that doesn't mean that's when the decision to non-acquiescence was made. [00:32:23] Speaker 01: But there's no evidence in the record here to suggest that there was some previous decision. [00:32:27] Speaker 01: And in fact, that's how agency decisions were made. [00:32:29] Speaker 05: Well, that's a very disputed argument in this case. [00:32:32] Speaker 05: They came into court saying the decision was made. [00:32:36] Speaker 05: August, October, different days in November, the government came in and said it was never. [00:32:43] Speaker 05: And so that seems to me a fact, to which she had to apply legal rules, but very much a disputed fact. [00:32:51] Speaker 01: I disagree, Your Honor, in that there is no dispute about the various statements that were made by the agency along the way. [00:32:57] Speaker 01: The only question is whether those statements have the legal significance of a decision by the agency not to acquiesce. [00:33:06] Speaker 01: The district court said, especially relying on the consistency of existing... It was absolutely a decision. [00:33:10] Speaker 05: But if the agency had decided, in my hypothetical, on November 17th, I don't know if there's any documents that day, that's why I'm picking that one, on November 17th, the agency said, we're pulling the trigger, we're going to go with non-acquiescence outside the Eighth Circuit, prepare the desk statement and other public announcements and guidance to people as to how we're going to implement it. [00:33:32] Speaker 05: And they did that on November 17th. [00:33:36] Speaker 05: a document on November 18th. [00:33:40] Speaker 05: Be pre-decisional to the non-acquiescence decision. [00:33:44] Speaker 01: If you had that kind of formal decision by the head of the agency that was acknowledged and you suggested that the subsequent document was pre-decisional to that decision as a matter of date, I don't think that that would count. [00:33:58] Speaker 01: But that's not what you have here. [00:34:00] Speaker 01: What you have here are documents that reflect the agency was continuing to discuss. [00:34:04] Speaker 01: There were emails from lower level staff members to higher level staff members. [00:34:09] Speaker 05: What they were discussing matters. [00:34:11] Speaker 05: Were they discussing [00:34:12] Speaker 05: non-equiescence or not, or a different subject, which might be protected as deliberative because it's a different subject, but not on the grounds argued here, and that is [00:34:23] Speaker 05: that, okay, now that we're not acquiescent, how is this going to work outside the Eighth Circuit? [00:34:27] Speaker 05: What are we going to tell folks to do? [00:34:29] Speaker 05: How are we going to explain ourselves to courts? [00:34:31] Speaker 05: All these types of things. [00:34:32] Speaker 01: Your Honor, I disagree that there was some decision previous to the November 18th desk statement that where the agency said, okay, we're going to not acquiesce and how should we implement it? [00:34:43] Speaker 05: It might not have been something that clear. [00:34:45] Speaker 01: That's why a fact finding had to be made. [00:34:46] Speaker 01: No, Your Honor, a fact finding does not have to be made because the question is not whether [00:34:52] Speaker 01: as a factual matter, there is a subsequent decision to which the documents are pre-decisional. [00:34:57] Speaker 01: The question is whether they're privileged, whether they reflect the pre-decisional deliberative qualities that that privilege protects, including... If that were how the agency had filed its declarations and defended it. [00:35:10] Speaker 01: That is how the agency filed its declarations and defended it. [00:35:12] Speaker 01: The agency explained that the documents are drafts, they explained that they're discussing potential options, that they are [00:35:20] Speaker 01: deliberative internally, that they're from lower-level staff members to higher-level staff members, suggesting and proposing various paths forward. [00:35:30] Speaker 01: And it's not correct to say, based on the affidavit and the VON index in the record here, that the agency only said that these are pre-decisional prior to the non-acquiescence decision. [00:35:41] Speaker 01: And the fact that- How did the district court rule here? [00:35:44] Speaker 01: The district court said that those documents that post-date the November 19th statement are no longer pre-decisional. [00:35:51] Speaker 01: But it did consider the deliberative and pre-decisional quality as all of the things I just mentioned. [00:35:57] Speaker 05: Well, it had to do that. [00:35:58] Speaker 05: It can't just be pre-decisional. [00:35:59] Speaker 05: It has to also be deliberative. [00:36:00] Speaker 05: But it quite clearly, if I read the decision, it was that they qualify as pre-decisional insofar as they are part of the process leading to a final decision. [00:36:10] Speaker 05: I'm on JA50. [00:36:11] Speaker 05: by the APA regarding whether it would not acquiesce. [00:36:15] Speaker 05: That's the pre-decision she's doing. [00:36:16] Speaker 05: It doesn't mean that there aren't other decisions there, right? [00:36:20] Speaker 05: That things could be deliberative, too. [00:36:21] Speaker 05: There's all kinds of stuff going on all the time that's deliberative. [00:36:24] Speaker 05: It's just, it seemed to me that she was finding the date of non-acquiescence and saying before that, pre-decisional. [00:36:32] Speaker 05: after that, and she reserved other questions. [00:36:35] Speaker 01: Yes, Your Honor. [00:36:35] Speaker 01: But again, the question before this Court is whether the documents are privileged and whether they were properly withheld under FOIA as a result. [00:36:43] Speaker 01: And that is a legal question that this Court reviews de novo. [00:36:46] Speaker 01: This Court can look at the documents in question and conclude based on their preliminary nature, based on the content of them in which they suggest that their [00:36:55] Speaker 01: continuing to discuss options and various things forward, that they are properly redacted and withheld under Exemption B-5. [00:37:04] Speaker 01: So even if you think, which I disagree, that the district court made that particular finding on that narrow ground, that does not require this court to come to a different conclusion. [00:37:17] Speaker 01: This court can come to its own conclusion about the deliberative and pre-decisional nature of the documents and can conclude that they were [00:37:24] Speaker 01: appropriately redacted under FOIA as a question of law. [00:37:29] Speaker 01: Thank you, DeNovo. [00:37:31] Speaker 05: Can I just ask you one thing? [00:37:32] Speaker 05: And I just want to be careful. [00:37:36] Speaker 05: In the in-camera documents, there's only one redaction on page three of document 1B. [00:37:44] Speaker 05: And I don't understand what the point of it is. [00:37:48] Speaker 05: And you may not be able to answer here in court. [00:37:50] Speaker 05: If you can't answer here in court, [00:37:52] Speaker 05: If you could submit a letter, if you think you need to submit it in camera to explain the grounds for that, that one particular reduction, if you can answer it here in court, that would be whatever you're most able to do. [00:38:07] Speaker 05: And if it's, like I said, it's something you can do later, and you can decide whether it needs to be in camera or public explanation. [00:38:14] Speaker 01: Yeah, I think it would be more appropriate for us to respond to the court. [00:38:18] Speaker 01: I just wanted to flag that one for you. [00:38:20] Speaker 01: OK, I just wanted to flag that one. [00:38:21] Speaker 01: But I'd be happy to do so. [00:38:26] Speaker 04: I want to ask you one thing. [00:38:27] Speaker 04: Do you consider any of these four people, wives, Nergan, Boran, Stoner, Nagel, as decision makers? [00:38:37] Speaker 04: position on who made the decision. [00:38:41] Speaker 04: I mean, there are a lot of documents among these four people. [00:38:45] Speaker 04: Is it your position that none of these four people was a decision maker? [00:38:53] Speaker 01: It's our position that none of those four people are the person who made the ultimate decision of the agency. [00:38:59] Speaker 01: They all are varying levels of agency officials, but there isn't one that has particular [00:39:07] Speaker 04: The director of the Water Permits Division, Deborah Nagel, is not a decision maker. [00:39:14] Speaker 01: Well, certainly she's a decision maker, Your Honor. [00:39:16] Speaker 01: But the question of whether the agency would, across the board, apply the Iowa League of Cities decision outside the Eighth Circuit or not isn't something that she would be making on her own. [00:39:34] Speaker 04: Thank you. [00:39:35] Speaker 04: Does Mr. Paul have any time [00:39:38] Speaker 04: In fact, why don't you take two minutes. [00:39:41] Speaker 03: Thank you, Your Honor. [00:39:42] Speaker 03: I want to make three quick points. [00:39:45] Speaker 03: Regarding the claim that facts were not in dispute, the declarations were most certainly directly contradicted by, as the Court even termed it, a plethora of agency records, not only with regard to whether a decision was made, but because EPA didn't even address the issue to date, we believe the decision was made early back in time. [00:40:06] Speaker 03: Number two, regarding document 4A, in particular the talking points, there is nothing draft whatsoever about document 4A. [00:40:16] Speaker 03: In fact, the document 4, which was finally released in total, says, the talking points we gave to Nancy Stoner, quote, these were the points we discussed in region seven. [00:40:28] Speaker 03: doesn't say thinking about anything and it goes on to say these are the talking points on how we intend to apply the Iowa League decision. [00:40:37] Speaker 03: It doesn't say please take a look at these talking points and decide whether or not you want to make a decision. [00:40:43] Speaker 03: It says this is how we intend to do it. [00:40:45] Speaker 03: Here are the points. [00:40:46] Speaker 03: And they were the same ones who talked about Region 7. [00:40:50] Speaker 03: I would note further that there is no question that Nancy Stoner was very clear on the 18th of November that the decision had already been decided, and of course she was going to say the same the next day. [00:41:03] Speaker 03: The next day, these talking points were given in on the 18th. [00:41:07] Speaker 03: Everybody knew what they were doing on that day. [00:41:09] Speaker 03: Last point. [00:41:11] Speaker 03: And it keeps getting raised. [00:41:13] Speaker 03: The fact that somebody has some ongoing discussions, that does not mean a decision has not been rendered. [00:41:20] Speaker 03: I mean, this court has dealt with that issue on more occasions than I can ever think about. [00:41:24] Speaker 03: Of course there are ongoing discussions. [00:41:27] Speaker 03: The subject was complex. [00:41:31] Speaker 03: How precisely are we going to carry out the decision we rendered? [00:41:36] Speaker 03: Fine. [00:41:36] Speaker 03: I would say the talking points [00:41:39] Speaker 03: lists how they're going to carry those out. [00:41:41] Speaker 03: That's what it was intended to do. [00:41:43] Speaker 03: The court can look at them themselves. [00:41:45] Speaker 03: And so with that, we just ask for the relief we ever requested. [00:41:51] Speaker 03: And if there are no further questions, go and ask.