Missouri Coalition For The Environment. v. U.S. Corps of Engineers

Sep 16: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-2218. In this case, the Missouri Coalition seeks disclosure of a number of documents from the U.S. Army Corps of Engineers under the Freedom of Information Act (FOIA). The district court granted summary judgment in favor of the Corps on the basis that the "deliberative process privilege," 5 U.S.C. § 552(b)(5), exempts all 83 documents responsive to the request. The documents related to the Upper Mississippi River System Flow Frequency Study (UMRSFFS) designed to identify the 100-and 500-year flood plains. The Coalition appealed the district court judgment and the Appeals Court remanded the case for further proceedings.

According to the Corps each and every document was identified as "privileged under FOIA Exemption 5, the Deliberative Process Privilege." The Coalition argued that the Corps had failed to prove that the documents were exempt from disclosure. The case revolves around the so-called "Vaughn index" which is designed to "help determine whether a governmental agency has discharged its burden under FOIA" and evolves from the Vaughn court, i.e. Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973). Vaughn indices serve two purposes: First, to ensure an “effectively helpless” party’s right to information “is not submerged beneath governmental obfuscation and mischaracterization” and second, to “permit the court system effectively and efficiently to evaluate the factual nature of disputed information.”

The Coalition argues that, viewed in the light most favorable to the Coalition, the Corps’ Vaughn index is insufficient to show whether the Corps’ obligations under FOIA were discharged. As a result, the Coalition posits, some of the documents should have been released. Alternatively, the Coalition proposes that even if the Vaughn index is adequate, some of the documents – in whole or in part – are not subject to the exemption. The Corps contends that it satisfied its FOIA obligations with an adequate Vaughn index that properly demonstrated the documents were subject to the deliberative process privilege.

The Appeals Court said that sworn declarations from Corps staffers provided adequate additional information to the Vaughn index to explain why the documents should be exempt. For example, one affidavit submitted indicated, "These communications are exempt from disclosure under Exemption 5 because they are predecisional and part of the deliberative process. They involve the give-and-take that is inherent in such a study process. . ."

The Coalition argues that the prior release of some of the documents, in whole or part, destroys the credibility of the index and affidavits. The Appeals Court said, "We are not persuaded that the fact the UMRSFFS report was ultimately released and that some of the information in the final report was contained in the requested documentation affects the deliberative or predecisional nature of the requested documents. We therefore conclude the Vaughn index is sufficient to establish that some of the information requested is, in fact, exempted by the deliberative process privilege. However, because the district court failed to analyze the segregability of the documents, we cannot conclude at this time that the privilege applied, as the district court concluded, to all 83 responsive documents in their entirety. . . Here, the district court made no findings on the issue of segregability. Although the issue was properly raised and preserved for appeal, we are unable to determine from the record whether the issue was considered and rejected or not considered at all. Therefore, we must remand the case for a segregability analysis consistent with this opinion."

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NRDC v. Winter (Department of Navy)

Sep 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-55294. Defendant-Appellant, Donald C. Winter (the Navy), appealed the district court’s decision to award attorneys’ fees to Plaintiffs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The Navy claimed that: (1) the amount of the award for some of the attorneys working on the case should not have been enhanced above the statutory rate; (2) the limited extent of Plaintiffs’ success merited a reduction in fees; and, (3) the award of appellate fees was improper because the fee application was filed in the district court, not in the court of appeals.

The Appeals Court said, "We conclude that the district court did not abuse its discretion on the second and third issues. However, because we conclude that the standard used by the district court to determine the first issue constitutes an error of
law, we vacate the district court’s order awarding fees and remand for additional fact finding and recalculation of fees in accordance with this opinion."

The Appeals Court summarized, "In Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991), we consolidated into a three-part test the relevant law governing what must be proven in order to be awarded enhanced attorneys’ fees: (1) 'the attorney must possess distinctive knowledge and skills developed through a practice specialty;' (2) 'those distinctive skills must be needed in the litigation;' and (3) 'those skills must not be available elsewhere at the statutory rate.' Id. at 1496. . .we remand this case to the district court for reconsideration consistent with this opinion to determine whether the Plaintiffs have met their burden of proof under the third prong of Love. If not, the district court should recalculate fees for the Plaintiffs as required. On remand, the district court should also recalculate fees for the junior Irell attorneys at the statutory rate, plus a cost of living increase."

Access the complete opinion (click here).