Anteneh Abtew v. DHS , 808 F.3d 895 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 17, 2015 Decided December 22, 2015
No. 14-5169
ANTENEH ABTEW,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01566)
David L. Cleveland argued the cause and filed the
briefs for appellant.
Peter R. Maier, Special Assistant U.S. Attorney,
argued the cause for appellee. With him on the brief were
Vincent H. Cohen Jr., Acting U.S. Attorney, and R. Craig
Lawrence, Assistant U.S. Attorney. Fred E. Haynes,
Assistant U.S. Attorney, entered an appearance.
Before: ROGERS, BROWN, and KAVANAUGH, Circuit
Judges.
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Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Foreign citizens who are
unlawfully in the United States may be subject to removal.
But those who fear persecution if they return to their home
countries may seek asylum in the United States. Under
American immigration law, those foreign citizens have two
opportunities to press their case for asylum. First, they may
petition the Department of Homeland Security to grant
asylum. Second, if that fails, they may bring their case before
an administrative immigration court.
In 2012, Anteneh Abtew, a citizen of Ethiopia, was in the
United States unlawfully. He feared persecution if he
returned to Ethiopia, and he therefore applied for asylum in
the United States. He alleged that he had suffered torture at
the hands of the Ethiopian government and would be abused
again if he returned. The Department of Homeland Security
did not grant asylum to Abtew. He appealed, and his case is
now before an immigration court.
While his case was pending in the immigration court,
Abtew filed a FOIA request for the Department’s
“Assessment to Refer” regarding his asylum application. An
Assessment to Refer is a short document prepared by a
Department official after interviewing an asylum applicant.
The Assessment summarizes the asylum interview and
assesses the applicant’s credibility and consistency. It also
recommends whether to grant asylum. The Department
official who wrote the Assessment to Refer then forwards it to
a supervisor, who in turn decides whether to grant asylum.
The Department of Homeland Security concluded that its
Assessment to Refer regarding Abtew was exempt from FOIA
3
under the deliberative process privilege encompassed within
FOIA Exemption 5. Abtew then sued in the U.S. District
Court. As relevant here, the District Court agreed with the
Department of Homeland Security and ruled that the
Assessment to Refer was exempt from disclosure under
Exemption 5. We likewise agree. Our standard of review is
de novo, and we affirm the judgment of the District Court.
***
FOIA Exemption 5 exempts from public disclosure
“inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency
in litigation with the agency.” 5 U.S.C. § 552(b)(5).
Exemption 5 incorporates the privileges that the Government
may claim when litigating against a private party, including
the governmental attorney-client and attorney work product
privileges, the presidential communications privilege, the
state secrets privilege, and the deliberative process privilege.
See Baker & Hostetler LLP v. Department of Commerce, 473
F.3d 312, 321 (D.C. Cir. 2006).
Here, the Department asserts the deliberative process
privilege. This “privilege rests on the obvious realization that
officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page
news.” Department of the Interior v. Klamath Water Users
Protective Association, 532 U.S. 1, 8-9 (2001). The privilege
serves to preserve the “open and frank discussion” necessary
for effective agency decisionmaking. Id. at 9. The privilege
protects “documents reflecting advisory opinions,
recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
150 (1975) (internal quotation marks omitted). As we have
4
stated, officials “should be judged by what they decided, not
for matters they considered before making up their minds.”
Russell v. Department of the Air Force, 682 F.2d 1045, 1048
(D.C. Cir. 1982) (brackets omitted).
To qualify for the deliberative process privilege, an intra-
agency memorandum must be both pre-decisional and
deliberative. See Coastal States Gas Corp. v. Department of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). “A document is
‘predecisional’ if it precedes, in temporal sequence, the
‘decision’ to which it relates.” Senate of the Commonwealth
of Puerto Rico v. Department of Justice, 823 F.2d 574, 585
(D.C. Cir. 1987); see also Coastal States, 617 F.2d at 866(pre-decisional documents are “generated before the adoption
of an agency policy”). And a document is deliberative if it is
“a part of the agency give-and-take – of the deliberative
process – by which the decision itself is made.” Vaughn v.
Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975); see also
Coastal States, 617 F.2d at 866.
In Abtew’s case, the Assessment to Refer was both pre-
decisional and deliberative. The Assessment was pre-
decisional; it was merely a recommendation to a supervisor.
The supervisor, not the official writing the Assessment, made
the final decision. The Assessment was also deliberative; it
was written as part of the process by which the supervisor
came to that final decision. The Assessment itself had no
“operative effect.” Sears, 421 U.S. at 160.
Abtew offers four primary objections to that
straightforward analysis.
First, Abtew argues that even if the Assessment had been
pre-decisional at one time, the Department’s supervisor
adopted it as the “final decision.” That is incorrect. The
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Department publicly explained its final decision through a
Referral Notice. That Referral Notice represented the final
decision. The Notice did not mention the Assessment at all.
Abtew responds that the supervisor who made the final
decision initialed the Assessment to Refer. But initialing
alone does not transform the Assessment into the
Department’s final decision. To be sure, an agency may
forfeit Exemption 5’s protection if it “chooses expressly to
adopt or incorporate by reference an intra-agency
memorandum previously covered by Exemption 5 in what
would otherwise be a final opinion.” Sears, 421 U.S. at 161;
see also Afshar v. Department of State, 702 F.2d 1125, 1143
n.22 (D.C. Cir. 1983). Initialing a memo may suggest
approval of the memo’s bottom-line recommendation, but it
would be wrong and misleading to think that initialing
necessarily indicates adoption or approval of all of the
memo’s reasoning. See Afshar, 702 F.2d at 1143 n.22; see
also Coastal States, 617 F.2d at 866 (deliberative process
privilege is designed “to protect against confusing the issues
and misleading the public by dissemination of documents
suggesting reasons and rationales for a course of action which
were not in fact the ultimate reasons for the agency’s action”).
Neither the Supreme Court nor any court of appeals has held
that initialing alone renders an otherwise exempt document
non-exempt. 1
Second, Abtew contends that the Assessment to Refer is
not deliberative. In particular, he claims that there was no
give-and-take in the agency’s process. But the interviewing
1
Of course, we do not rule out the possibility that initialing a
memo together with other circumstances might indicate agency
adoption of that memo in some cases. But Abtew has not presented
evidence to support that conclusion here.
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officer wrote the Assessment as a recommendation to a
supervisor. A recommendation to a supervisor on a matter
pending before the supervisor is a classic example of a
deliberative document. See American Federation of
Government Employees, Local 2782 v. Department of
Commerce, 907 F.2d 203, 208 (D.C. Cir. 1990); see also
Vaughn, 523 F.2d at 1144.
Third, Abtew asserts that the Department of Homeland
Security is judicially estopped from invoking Exemption 5.
Abtew maintains that the Department is estopped because it
has not always invoked the deliberative process privilege for
other Assessments. But the rule of judicial estoppel
“generally prevents a party from prevailing in one phase of a
case on an argument and then relying on a contradictory
argument to prevail in another phase.” New Hampshire v.
Maine, 532 U.S. 742, 749 (2001). Here, Abtew is citing other
litigation with other parties, not a past phase of this case. Put
simply, an agency does not forfeit a FOIA exemption simply
by releasing similar documents in other contexts. See Army
Times Publishing Co. v. Department of the Air Force, 998
F.2d 1067, 1071 (D.C. Cir. 1993). Indeed, that kind of
forfeiture rule would encourage agencies to voluntarily
release fewer documents, a result in tension with FOIA’s
broad purposes.
Fourth, apart from his FOIA claim, Abtew has sought
access to his Assessment to Refer under the procedural rules
that govern removal proceedings before the immigration
court. See 8 U.S.C. § 1229a. Those rules afford aliens “a
reasonable opportunity to examine the evidence against the
alien.” Id. § 1229a(b)(4)(B). Abtew argues that he is entitled
to a “reasonable opportunity to examine” the Assessment
because it may constitute “evidence against” him in the
pending immigration proceeding. But this is not the time and
7
place to raise such a claim. The rules that Abtew invokes are
rules governing proceedings before the immigration court.
The immigration court has not yet held its hearing on the
merits of Abtew’s asylum claim. It is not even clear at this
point whether or how the Assessment might be used in that
court. In any event, if Abtew seeks the Assessment in that
proceeding and does not receive it in a timely fashion, he may
appeal that decision in the ordinary course. See generally 8
U.S.C. § 1252. We take no position here on Abtew’s right to
obtain the Assessment to Refer in that proceeding.
***
We affirm the judgment of the District Court.
So ordered.