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Brennan Center For Justice At New York University School of Law v. United States Department of Justice

September 19, 2012


Appeal from a judgment of the United States District Court for the Southern District of New York (Victor Marrero, Judge) granting the plaintiff's motion for summary judgment and denying the defendants' cross-motion for summary judgment.

The opinion of the court was delivered by: Sack, Circuit Judge:


Brennan Center for Justice v. Department of Justice

Argued: February 21, 2012

Before: CALABRESI, SACK, and HALL, Circuit Judges.

The court ordered disclosure by the defendants of three memoranda 21 prepared by the Department of Justice's Office of Legal Counsel 22 because they were not covered by the deliberative process 1 exemption, 5 U.S.C. § 552(b)(5), from the general requirement of 2 disclosure contained in the Freedom of Information Act. We 3 conclude that one such memorandum was incorporated by reference 4 in a USAID document such that the protection of the exemption was 5 surrendered, but that the other two were not and retain their 6 exempt status.

Affirmed in part; reversed and remanded in part.

27 The defendants, the United States Department of Justice 28 ("DOJ"), the United States Department of Health and Human 29 Services ("HHS"), and the United States Agency for International 30 Development ("USAID"), appeal from a judgment of the United 31 States District Court for the Southern District of New York 1 (Victor Marrero, Judge) granting a motion for summary judgment by 2 the plaintiff, the Brennan Center for Justice at New York 3 University School of Law ("Brennan Center"), denying the 4 defendants' cross-motion for summary judgment, and, pursuant to 5 the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, ordering 6 the release of three memoranda prepared by the DOJ's Office of 7 Legal Counsel ("OLC"). For the reasons that follow, the judgment 8 of the district court is affirmed with respect to one of these 9 memoranda, and reversed and remanded with respect to the other 10 two.


In 2003, Congress enacted the two statutes that provide 13 the factual backdrop for this litigation: the United States 14 Leadership Against HIV/AIDS, Tuberculosis, Malaria Act, 22 U.S.C. 15 §§ 7601-7682. ("Leadership Act"), and the Trafficking Victims 16 Protection Reauthorization Act, 22 U.S.C. §§ 7101-7112. 17 ("TVPRA"). Each included what has become known as the "pledge 18 requirement," purporting to require all organizations that 19 receive funds for HIV/AIDS and anti-trafficking work pursuant to 20 the statutes to have "a policy explicitly opposing prostitution 21 and sex trafficking." 22 U.S.C. § 7631(f); see also 22 U.S.C. § 22 7110(g)(2).

After the Leadership Act was enacted, the 24 [OLC] . . . warned that applying the Policy 25 Requirement to U.S.-based organizations would 26 be unconstitutional. Heeding that warning, 1 [the government] initially refrained from 2 enforcing it against U.S.-based NGOs. OLC 3 subsequently changed course and withdrew what 4 it characterized as its prior "tentative 5 advice," asserting that "there are reasonable 6 arguments to support the constitutionality" 7 of applying the Policy Requirement to 8 U.S.-based organizations, and, starting in 9 mid-2005, the Agencies began applying the 10 Requirement to U.S.-based grantees.

11 Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l 12 Dev., 651 F.3d 218, 225 (2d Cir. 2011).*fn2

On July 14, 2005, the Brennan Center submitted FOIA 14 requests to USAID, HHS, and the OLC for "any and all documents 15 containing guidance" provided by the OLC to any representatives 16 of HHS or USAID "relating to the enforcement" of the pledge 17 requirement. FOIA Request from Brennan Center to HHS at 1 (July 18 14, 2005), Brennan Center v. Dep't of Justice, No. 11-4599, Joint 19 Appendix ("J.A."), at 248 (2d Cir. Jan. 6, 2012); FOIA Request 20 from Brennan Center to OLC at 1, J.A. 270 (July 14, 2005); FOIA 21 Request from Brennan Center to USAID at 1, J.A. 302 (July 14, 22 2005). On March 7, 2007, HHS denied the request in its entirety 1 and referred it to USAID and the OLC, from which, it had 2 determined, many of the requested documents originated.*fn3 The OLC 3 denied the original request in its entirety, and denied the 4 request referred from HHS except as to a nine-page letter 5 commenting on the TVPRA that was already in the public record, 6 which was sent in September 2003 from a DOJ official to 7 Representative James Sensenbrenner, then-Chairman of the House 8 Judiciary Committee. USAID did not respond to the referred 9 request, and denied the original request in its entirety. The 10 Brennan Center appealed the various denials with those agencies, 11 and the agencies affirmed their denials, leaving the Brennan 12 Center with the option of pursuing its claims in federal court. 13 See 5 U.S.C. § 552(a)(4)(B).

On October 15, 2009, the Brennan Center brought this 15 action in the United States District Court for the Southern 16 District of New York broadly alleging that USAID, OLC, and HHS 17 had violated FOIA by failing to identify responsive documents, 18 failing to disclose records, failing to disclose reasonably 19 segregable portions of otherwise withheld documents, and, with 20 respect to the OLC and USAID, failing to respond to FOIA 1 requests.

On January 15, 2010, the defendants provided the 2 plaintiff with an index of withheld documents as required by 3 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The Vaughn index 4 included the date of each document withheld, the author and 5 recipient(s), a brief description, the number of pages, and the 6 reason for its being withheld. The district court judge met with 7 the defendants on April 22, 2010, and May 5, 2010, and asked them 8 to consider disclosing some or all of the documents in order to 9 avoid further litigation. In response, the defendants released 10 heavily redacted versions of several documents and associated 11 emails. See Order, Brennan Center v. Dep't of Justice, No. 09 12 Civ. 8756, at 1-3 (S.D.N.Y. July 1, 2010), ECF No. 16. To the 13 extent that internal agency emails and memoranda are referenced 14 in this opinion, they are part of the record by virtue of this 15 disclosure.

16 On January 28, 2011, the plaintiff moved for summary 17 judgment seeking release of the entirety of three memoranda that 18 it alleges were improperly withheld pursuant to FOIA's "Exemption 19 5," which shields from disclosure "inter-agency or intra-agency 20 memorandums or letters which would not be available by law to a 21 party other than an agency in litigation with the agency." 5 22 U.S.C. § 552(b)(5). That exemption has been interpreted to 23 encompass traditional common law privileges against disclosure, 24 including the attorney-client and deliberative-process 1 privileges, and the work-product doctrine. Nat'l Council of La 2 Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005). The 3 three withheld documents that are the targets of the Brennan 4 Center's objections are: (1) a one-page memorandum provided by 5 the OLC to HHS and USAID on or about February 17, 2004, regarding 6 the constitutionality of the pledge requirement (the "February 7 Memorandum"); (2) a July 2, 2004, draft of a formal, but never- 8 finalized, OLC opinion addressing the constitutionality of the 9 pledge requirement (the "July 2 Memorandum"); and (3) a July 29, 10 2004, draft memorandum similar to the July 2 Memo (the "July 29 11 Memorandum").

The February Memorandum

On February 12, 2004, the General Counsel of HHS asked 14 the OLC to provide, on a "very short timeframe," "advice on the 15 constitutional issues raised by the grant restrictions under the 16 two statutes." Memorandum from Renee Lettow Lerner at 2, J.A. 55 17 (March 12, 2004) (describing HHS request).

18 In response, on February 17, Renee Lettow Lerner, an 19 OLC attorney, sent an email to HHS Deputy General Counsel Paula 20 M. Stannard and USAID employee John Gardner attaching a one-page 21 memorandum containing at least some of the requested advice.*fn4

1 The memorandum explained that "[i]n the limited time available to 2 us, we have not been able to conduct a comprehensive analysis, 3 but we have reached the following tentative views, which might 4 need to be altered after further analysis." February Memorandum 5 at 1, J.A. 37. The document, the first of the three memoranda 6 that are the subject of this litigation, was supplied to the 7 plaintiff during the course of this litigation with all analysis 8 redacted.

9 In an email later that evening, Stannard conveyed 10 "draft language for the HIV/AIDS and trafficking grant 11 awards/agreements" to Lerner. Email from Stannard, "Re: OLC's 12 advice on grant announcements," J.A. 40 (Feb. 17, 2004). She 13 also sent a copy to the USAID employee. Again, a copy of the 14 email was supplied to the Brennan Center, but most of it was 15 redacted. Lerner replied to Stannard the following day, February 16 18, in an email that was, in effect, withheld from disclosure, 17 i.e., it is redacted in its entirety.

18 On February 19, a USAID employee, acting on behalf of 19 USAID employee Gardner, sent that agency's revised "Acquisition & 20 Assistance Policy Directive" ("AAPD")*fn5 to Lerner, Stannard, and 8 1 other HHS and State Department employees. Later that day, 2 Stannard and HHS employee Demetrios Kouzoukas sent "a final draft 3 of the language" to Lerner, Gardner, and other HHS, USAID, and 4 State Department employees, and thanked those on the email chain 5 for their comments. Email from Demetrios Kouzoukas, "Language in 6 HHS HIV/AIDS award instruments," J.A. 48 (Feb. 19, 2004).

7 One week later, on February 26, 2004, USAID issued an 8 AAPD intended to "provide clauses to be included as new standard 9 provisions for assistance agreements and contracts that include 10 FY 2004 HIV/AIDS funds." USAID AAPD 04-04 Revised, 11 "Implementation of the United States Leadership Against HIV/AIDS, 12 Tuberculosis and Malaria Act of 2003" at 2, J.A. 167 (Feb. 26, 13 2004) ("February 26 AAPD"). The February 26 AAPD included the 14 pledge requirement only for "Non-U.S. Non-Governmental 15 Organizations and Public International Organizations." Id. at 5. 16 That meant that any grant to a foreign organization would include 1 a clause explaining that "[a]s a condition of entering into this 2 agreement, the recipient agrees that it has a policy explicitly 3 opposing, in its activities outside the United States, 4 prostitution and sex trafficking." Id. at 6. No similar 5 language would be included in the grant language required with 6 respect to U.S. organizations. An AAPD that had been issued on 7 January 15, 2004, prior to the OLC's February memorandum, did 8 include the pledge requirement language for both U.S. and non- 9 U.S. organizations. USAID AAPD 04-04, "Implementation of the 10 United States Leadership Against HIV/AIDS, Tuberculosis and 11 Malaria Act of 2003" at 3, J.A. 162 (Jan. 15, 2004).

12 On June 24, 2004, HHS issued a grant proposal that 13 required "any foreign recipient [to] have a policy explicitly 14 opposing, in its activities outside the United States, 15 prostitution and sex trafficking." HHS Funding Announcement, 16 "HIV Treatment for Research Subjects or by Researchers in Kenya" 17 at 7, J.A. 176 (June 24, 2004). A July 22, 2004, USAID document 18 contained a footnote explaining that the OLC "in a draft opinion 19 determined that this provision only may be applied to foreign 20 non-governmental organizations and public international 21 organizations because of the constitutional implications of 22 applying it to U.S. organizations." USAID FY 2004 Update, 23 "Guidance on the Definition and Use of the Child Survival and 24 Health Programs Fund and the Global HIV/AIDS Initiative Account" 1 at 35 n.10, J.A. 197 (July 22, 2004) ("July 22 USAID Update"). 2 On August 3, 2004, USAID issued another AAPD explaining that 3 "[t]he US Government has determined that it is appropriate to 4 apply the [pledge] requirement . . . only to foreign 5 organizations, including public international organizations." 6 USAID AAPD 04-09, "Anti-Trafficking Activities -- Limitation on 7 the Use of Funds; Restriction on Organizations Promoting, 8 Supporting or Advocating Prostitution" at 3, J.A. 200 (Aug. 3, 9 2004) ("August 3 AAPD").

The July Memoranda

In a July 2, 2004 email, the OLC provided HHS with a 12 thirty-page draft opinion -- the second document the plaintiff 13 seeks. Another version of that draft, dated July 29, the third 14 document that the plaintiff contends must be disclosed, was 15 emailed to HHS on July 30. In the record on appeal, both draft 16 opinions are redacted with the exception of a date, title, and 17 introductory sentence. After an in camera review, however, the 18 district court concluded that contrary to the OLC's view conveyed 19 in February, those drafts counseled implementation of the pledge 20 requirement for both U.S.-based and foreign organizations.*fn6

1 Brennan Center v. Dep't of Justice, No. 09 Civ. 8756 at 17-18, 2 2011 WL 4001146, at *7, 2011 U.S. Dist. LEXIS 99121, at *19 3 (S.D.N.Y. Aug. 30, 2011). No formal OLC opinion on the issue was 4 ever finalized or issued.

5 In September 2004, Daniel Levin, the Acting Assistant 6 Attorney General for the OLC, wrote to the general counsel of HHS 7 confirming that "earlier this year . . . [DOJ] gave its tentative 8 advice" that the pledge requirement could only be applied to 9 foreign organizations overseas, but explained that "[w]e have 10 reviewed the matter further and we are withdrawing that tentative 11 advice. . . [T]here are reasonable arguments to support [the 12 domestic pledge requirement's] constitutionality." Letter from 13 Levin to HHS General Counsel Alex M. Azar, II at 1, J.A. 207 14 (Sept. 20, 2004)("Levin Letter"). This letter was not released 15 by either the OLC or HHS, but, according to the defendants, it 16 was "improperly leaked . . . [and] later made public by members 17 of Congress." Defs.' Br. at 13.

18 The first public discussion of the agencies' 19 deliberations concerning the pledge requirement was held during a 20 March 2005 hearing of the Foreign Operations Subcommittee of the 21 House Appropriations Committee. Randall Tobias, who was then 22 U.S. Global AIDS coordinator, testified that

23 [t]he [OLC] provided some tentative advice 24 initially that those restrictions should be 25 applied only to foreign organizations.

1 Sometime mid- to late- . . . September of 2 2004, [the OLC] withdrew that earlier 3 tentative advice and advised that that 4 provision was intended by the Congress to 5 apply without that limitation to both 6 domestic organizations as well as foreign 7 organizations. And so I'm simply following 8 the legislation and the advice to implement 9 that.

10 Foreign Operations, Export Financing, and Related Programs 11 Subcommittee Hearing Testimony of Randall L. Tobias, J.A. 236 12 (March 2, 2005)("Tobias Testimony"). 13 In May 2005, HHS announced that it would apply the 14 pledge requirement to domestic organizations, and USAID did the 15 same in June 2005.

16 In a July 17, 2007, letter from Principal Deputy 17 Assistant Attorney General Brian Benczkowski to Congressman Henry 18 Waxman, Benczkowski further explained the OLC's positions on the 19 pledge requirement. "[I]n February 2004, the [OLC] provided 20 tentative advice [to HHS and USAID] that the [pledge 21 requirement] . . . could, under the Constitution, be applied only 22 to foreign organizations acting overseas." Letter from Brian 23 Benczkowski to Congressman Waxman at 1, J.A. 230 (July 17, 24 2007)("Benczkowski Letter"). But Benczkowski explained that the 25 OLC had thereafter changed its mind and advised in the September 26 2004 letter that the pledge requirement could be applied 27 domestically because there were "reasonable arguments to defend" 28 doing so. Id. at 1-2. The letter also noted that the OLC would 1 not turn over its internal documents on the issue because of 2 "substantial confidentiality interests."*fn7 Id. at 2.

The District Court Opinion

The district court considered the foregoing evidence in 5 analyzing the question of whether the agencies had 6 "expressly . . . adopt[ed] or incorporate[d]" the memoranda 7 sufficiently to waive the protection of Exemption 5. Brennan 8 Center, 2011 WL 4001146, at *3, 2011 U.S. Dist. LEXIS 99121, at 9 *8-*9 (quoting La Raza, 411 F.3d at 356); see also discussion of 10 Exemption 5, at Part II of the Discussion section of this 11 opinion, below. In ...

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