Loving v. Department of Defense

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2008 Decided December 23, 2008

No. 07-5318

DWIGHT LOVING,
APPELLANT

v.

DEPARTMENT OF DEFENSE AND DEPARTMENT OF THE ARMY,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 06cv01655)

Seth A. Watkins argued the cause for appellant. With him
on the briefs was Charles F. Schill.

Michael S. Raab, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Jeffrey S. Bucholtz, Acting Assistant Attorney General,
Jeffrey A. Taylor, U.S. Attorney, and Mark B. Stern, Attorney.
R. Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.

Before: ROGERS and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
 2
Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Convicted of capital murder by a
military court-martial, appellant filed suit under the Freedom
of Information Act seeking disclosure of Department of
Defense and Army memoranda prepared for the President in
connection with his statutory review of appellant’s death
sentence. The district court found the requested documents
exempt from disclosure under FOIA Exemption 5 and granted
the government’s motion for summary judgment. For the
reasons set forth in this opinion, we affirm.

I.
Under Article 71(a) of the Uniform Code of Military
Justice, the President must “approve[]” all court-martial death
sentences before they are carried out. 10 U.S.C. § 871(a) (“If
the sentence of the court-martial extends to death, that part of
the sentence providing for death may not be executed until
approved by the President.”). The Rules for Courts-Martial
specify procedures for transmitting military death penalty
cases to the President, requiring the Judge Advocate General
to provide all court records and his or her recommendation to
the Secretary of the Army “for the action of the President.”
MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M.
1204(c)(2) (2005 ed.), available at http://www.loc.gov/rr/
frd/Military_Law/pdf/manual-2005.pdf.

A general court-martial sentenced appellant, Army
Private Dwight Loving, to death after finding him guilty of
felony murder, premeditated murder, attempted murder, and
robbery. The United States Supreme Court affirmed the
capital sentence. See Loving v. United States, 517 U.S. 748,
774 (1996). Proceeding under the Freedom of Information
Act, 5 U.S.C. § 552, Loving asked the Department of Defense
and the Army to disclose all records concerning the general
 3
procedures for transmitting military death penalty cases to the
President, as well as all records concerning Loving’s death
sentence in particular. While these requests were pending, the
Secretary of the Army forwarded Loving’s case to the
President for action under Article 71(a). Learning of the
Secretary’s action and having received no response to his
FOIA requests, Loving initiated administrative appeals with
both the Department of Defense and the Army. The Army
never responded. The Defense Department did respond,
releasing 133 pages and informing Loving that it was
withholding an additional 104 pages under, among other
things, FOIA Exemption 5, § 552(b)(5), which allows
agencies to withhold documents protected by traditional
discovery privileges, see Baker & Hostetler LLP v. U.S. Dep’t
of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006). Loving
then filed a second administrative appeal with the Department
of Defense. When the Department failed to respond, Loving
filed suit under FOIA, leading the two agencies to release
hundreds of documents and withhold many others. The
agencies also filed Vaughn indexes describing the withheld
documents, see Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C.
Cir. 1973), and moved for summary judgment. Loving
narrowed his request to ten documents and cross-moved for
summary judgment to compel disclosure. After the two
agencies identified six of these ten documents as “drafts,”
Loving narrowed his request to the four remaining
documents. The disclosure of these four documents was the
only matter disputed in the district court and is the only issue
before us.

As described in the Vaughn indexes, two of the disputed
documents reflect the sequential transmission of Loving’s
case—and recommendations on it—to the President from the
Army Judge Advocate General and the Secretary of the Army.
The first step in this sequence, Document 408, is a
 4
memorandum from the Army Judge Advocate General to the
Secretary of the Army, offering “advice outlining the PVT
Loving case in detail and providing a recommendation
whether the [Secretary of the Army] should recommend
approval of the death penalty to the President.” Col. Flora D.
Darpino Decl. Attach., Mar. 30, 2007. Document 499, in
turn, is a one-page memorandum from the Army Secretary
forwarding Document 408 to the President, see Darpino Decl.
¶ 33, and providing its own “recommendation regarding
whether or not PVT Loving’s death sentence should be
approved,” Darpino Decl. Attach. The third disputed record,
Document 86, is a memorandum from the Defense Secretary
to the President concerning “Military Court-Martial Capital
Case Forwarded for Action, United States v. Dwight J.
Loving.” Robert E. Reed Decl. Ex. A, Mar. 27, 2007.
Finally, Document 87 is a one-page memorandum from the
Department of Defense Office of General Counsel to the
White House Counsel concerning “The President’s Action in
Two Military Capital Cases.” Reed Decl. Ex. A.

Finding Documents 408, 499, and 86 protected by the
presidential communications privilege and Document 87
protected by the deliberative process privilege, the district
court concluded that FOIA Exemption 5 shielded each of the
disputed documents from disclosure. See Loving v. Dep’t
of Def., 496 F. Supp. 2d 101, 107–09 (D.D.C. 2007). It
therefore granted the government’s motion for summary
judgment and denied Loving’s. Id. at 110.

Loving now appeals. We review the district court’s
summary judgment ruling de novo, remaining “mindful that
the ‘burden is on the agency’ to show that requested material
falls within a FOIA exemption,” and affirming only if we
detect no genuine issue of material fact. Petroleum Info.
 5
Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C.
Cir. 1992) (quoting § 552(a)(4)(B)).
II.
FOIA directs that “each agency, upon any request for
records . . . shall make the records promptly available to any
person” unless the requested records fall within one of the
statute’s nine exemptions. § 552(a)(3)(a). Exemption 5, the
only exemption at issue here, allows the government to
withhold “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.” § 552(b)(5).
As we have explained, Exemption 5 “incorporates the
traditional privileges that the Government could assert in civil
litigation against a private litigant”—including the
presidential communications privilege, the attorney-client
privilege, the work product privilege, and the deliberative
process privilege—and excludes these privileged documents
from FOIA’s reach. Baker & Hostetler LLP, 473 F.3d at 321.
Because Exemption 5 covers “those documents, and only
those documents, normally privileged in the civil discovery
context,” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149
(1975), it does not protect documents that are “‘routinely’ or
‘normally’ disclosed” in civil discovery, Dep’t of Justice v.
Julian, 486 U.S. 1, 12 (1988) (quoting FTC v. Grolier Inc.,
462 U.S. 19, 26 (1983)).

Exemption 5 incorporates two executive privileges that
are relevant here: the presidential communications privilege
and the deliberative process privilege. See Baker & Hostetler
LLP, 473 F.3d at 321. The presidential communications
privilege, a “presumptive privilege for [p]residential
communications,” United States v. Nixon, 418 U.S. 683, 708
(1974), preserves the President’s ability to obtain candid and
informed opinions from his advisors and to make decisions
 6
confidentially, see Judicial Watch, Inc. v. Dep’t of Justice,
365 F.3d 1108, 1112 (D.C. Cir. 2004). As such, the privilege
protects “communications directly involving and documents
actually viewed by the President,” as well as documents
“solicited and received” by the President or his “immediate
White House advisers [with] . . . broad and significant
responsibility for investigating and formulating the advice to
be given the President.” Id. at 1114. The privilege covers
documents reflecting “presidential decisionmaking and
deliberations,” regardless of whether the documents are
predecisional or not, and it covers the documents in their
entirety. In re Sealed Case, 121 F.3d 729, 744–45 (D.C. Cir.
1997).

The deliberative process privilege protects “documents
reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Dep’t
of Interior v. Klamath Water Users Protective Ass’n, 532 U.S.
1, 8 (2001) (internal quotation marks omitted). For the
deliberative process privilege to apply, the material must be
“predecisional” and “deliberative.” In re Sealed Case, 121
F.3d at 737. Unlike the presidential communications
privilege, the deliberative process privilege does not protect
documents in their entirety; if the government can segregate
and disclose non-privileged factual information within a
document, it must. Army Times Publ’g Co. v. Dep’t of Air
Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993).

In support of his claim to the requested documents,
Loving relies on Department of Justice v. Julian, 486 U.S. 1
(1988), in which the Supreme Court held that Exemption 5
does not protect presentence investigation reports from
disclosure to prisoners who are the subjects of the reports.
Insisting that the President’s action under Article 71(a)
 7
represents the “ultimate sentencing” in a military capital case,
Appellant’s Opening Br. 11, Loving argues that the
documents he seeks are akin to the presentence investigation
reports at issue in Julian. If we accept Loving’s premise, his
rationale is simple enough: these documents, like the
presentence investigation reports at issue in Julian, contain
sentencing recommendations. Indeed, although the
government disputes Loving’s characterization of the
President’s Article 71(a) authority, it denies neither the
advisory nature of these documents nor the role they play in
Article 71(a) actions.

But the analogy to Julian requires a second step. In
Julian the Court relied on the fact that the government had
previously shared the presentence investigation reports at
issue with the requesters—two prisoners seeking access to
their own reports—and that Federal Rule of Criminal
Procedure 32(c), as well as the Parole Act, 18 U.S.C. §
4208(b) (1982), required as much. 486 U.S. at 11–14.
Because of this, the Court concluded, the documents were
“routinely available” to the prisoners, if not the public at
large. Julian, 486 U.S. at 13 (internal quotation marks
omitted). Thus, although the Court assumed that the
documents would be privileged and exempt from disclosure if
third parties were to request them, see 486 U.S. at 12–14, it
concluded that there “simply [was] no privilege preventing
disclosure” to the prisoners themselves. Id. at 13–14; see also
id. at 13 (“Congress has strongly intimated, if it has not
actually provided, that no such privilege should exist.”).

Loving argues that the same is true here, though the law
otherwise compelling disclosure, he contends, comes not from
statute or rule of criminal procedure (as in Julian) but from
the Constitution itself. Specifically, Loving relies on Gardner
v. Florida for the proposition that a defendant is “denied due
 8
process of law when the death sentence [i]s imposed . . . on
the basis of information which [the defendant] ha[s] no
opportunity to deny or explain.” 430 U.S. 349, 362 (1977).
Because the requested documents contain the precise kind of
“capital sentencing recommendation[s]” that “would routinely
or normally be available to [him] in order for the capital
sentencing process to satisfy due process of law,” Loving
contends that the documents he requests are “routinely
available” to him within the meaning of Julian and therefore
subject to disclosure under FOIA. Appellant’s Opening Br.
23.

We need not decide whether Gardner gives Loving the
right he claims, for Loving’s constitutional rights as a capital
prisoner affect the merits of his FOIA request only if Julian in
fact applies to this case. It does not. Although the Court
suggested in Julian that FOIA sometimes compels the
government to comply with one person’s request for
disclosure even though it could properly refuse an identical
request from anyone else, the Court has since emphasized that
FOIA rarely permits such distinctions. In Department of
Justice v. Reporters Committee for the Freedom of the Press,
the Court clarified that the requester’s identity matters only
where, as in Julian, “the objection to disclosure is based on a
claim of privilege and the person requesting disclosure is the
party protected by the privilege.” 489 U.S. 749, 771 (1989);
see also United Techs. Corp. v. FAA, 102 F.3d 688, 692 (2d
Cir. 1996) (“Julian applies only where the Government’s
‘objection to disclosure is based on a claim of a privilege and
the person requesting disclosure is the party protected by the
privilege. . . .’” (quoting Reporters Comm., 489 U.S. at 771)).
Otherwise, “[t]he identity of the requesting party has no
bearing on the merits” of a FOIA request at all. Reporters
Comm., 489 U.S. at 771.
 9
Here the “party protected by the privilege,” id., is not
Loving but rather the President of the United States. Loving’s
identity as a capital prisoner subject to Article 71(a)
proceedings therefore “has no bearing on the merits” of his
FOIA request, id., nor do any constitutional rights that
Gardner may afford him. Simply put, for the purposes of his
FOIA request, Loving is no different than any other requester.

In sum, when executive privileges are at stake, Julian
does nothing to alter standard Exemption 5 analysis, which
asks only whether a document is “normally privileged,” FTC
v. Grolier, 462 U.S. at 28 (internal quotation marks omitted),
regardless of the requester’s identity or particular need for the
document, Sears, Roebuck & Co., 421 U.S. at 149 & n.16.
Thus, the sole question we face is whether the requested
documents would normally fall within the presidential
communications privilege or the deliberative process
privilege. We turn to that inquiry now.

III.
Having rejected Loving’s primary argument, we can
easily affirm the district court’s ruling that Documents 408,
499, and 86 are exempt from disclosure based on the
presidential communications privilege. Documents 499 and
86 are memoranda from the Army and Defense Secretaries
directly to the President advising him on his Article 71(a)
review of Loving’s capital sentence. Such memoranda fall
squarely within the presidential communications privilege
because they “directly involve” the President, Judicial Watch,
365 F.3d at 1114, and their confidentiality “ensure[s] that
presidential decision-making is of the highest caliber,
informed by honest advice and full knowledge,” In re Sealed
Case, 121 F.3d at 750.
 10
Loving challenges the privilege’s applicability to these
two documents, quoting Judicial Watch for the proposition
that “documents that are not ‘solicited and received’ by the
President or his Office are instead protected against
disclosure, if at all, by the deliberative process privilege,” 365
F.3d at 1112, and claiming that no evidence demonstrates that
the President “solicited and received” these two memoranda.
But this requirement applies only to “internal agency
documents,” that is, “agency documents that are not submitted
for Presidential consideration.” Id. (emphasis added).
Nothing in Judicial Watch disturbs the established principle
that communications “directly involving” the President, id. at
1114—like Documents 499 and 86—are entitled to the
privilege, regardless of whether the President solicited them.
See In re Sealed Case, 121 F.3d at 751–52 (taking as
indisputable that the presidential communications privilege
includes “communications that directly involve the
President”).

Although not addressed directly to the President,
Document 408 also falls within the presidential
communications privilege. That document, which contains
the Judge Advocate General’s recommendation on Loving’s
capital sentence, was forwarded by the Army Secretary to the
President. We agree with the district court that the President
solicited and received Document 408 in a manner sufficient to
bring it within the presidential communications privilege.
Rule 1204(c)(2) of the Rules for Courts-Martial directs the
Judge Advocate General to submit his recommendation so the
President may act upon it, see MANUAL FOR COURTS-
MARTIAL, R.C.M. 1204(c)(2) (“[T]he Judge Advocate
General shall transmit . . . the recommendation of the Judge
Advocate General to the Secretary concerned for the action of
the President.”), and it is the President who promulgates the
Rules for Courts-Martial, see Loving, 517 U.S. at 770; 10
 11
U.S.C. § 836(a). Furthermore, contrary to Loving’s
argument, Document 408 does not lose its privileged status
simply because it traveled up the chain of command before
the President received it. To be sure, Judicial Watch does
suggest that documents subject to “various stages of
intermediate review before . . . submi[ssion]” to the President
might implicate the “confidentiality and candor concerns”
animating the presidential communications privilege less so
than direct communications with the President. 365 F.3d at
1115. But it announced this principle with respect to
“documents and recommendations . . . that are not submitted
[to] the President”—rather than those, like Document 408,
that ultimately are. Id. at 1117; see also id. (“[A]ny . . .
documents, reports, or recommendations that the [agency]
submits to the Office of the President . . . remain protected.”).

Loving argues that even if Documents 408, 499, and 86
qualify for the presidential communications privilege, that
privilege is “‘presumptive’ and ‘can be overcome by a
sufficient showing of need.’” Id. Appellant’s Opening Br. 26-
27 (quoting Judicial Watch, 365 F.3d at 1113–14). The
district court concluded, and the government now argues, that
this principle is “inapplicable to FOIA, where the particular
need of the applicant is not relevant.” Loving, 496 F. Supp.
2d at 108. Although we have yet to address this question with
respect to the presidential communications privilege, we have
said with respect to the deliberative process privilege that “the
particular purpose for which a FOIA plaintiff seeks
information is not relevant in determining whether FOIA
requires disclosure.” In re Sealed Case, 121 F.3d at 737 n.5.
Because the presidential communications privilege “is more
difficult to surmount” than the deliberative process privilege,
id. at 746, we conclude that it, too, is insurmountable here.
 12
This brings us finally to Document 87—a one-page
memorandum from the Department of Defense Office of
General Counsel to the Counsel to the President, which the
district court found exempt from disclosure under the
deliberative process privilege. Although not disputing that
the document qualifies for the deliberative process privilege,
Loving argues that the public interest in the document
overcomes the privilege. He also argues that even if the
privilege applies, the district court erred by failing to inspect
the document to determine whether it contains segregable
factual portions that may be disclosed.

In re Sealed Case forecloses the first argument for the
reasons described above. 121 F.3d at 737 & n.5. The second
claim fails as well. Although Loving is correct that the
government has the “burden of demonstrating that no
reasonably segregable information exists within . . .
documents withheld” under the deliberative process privilege,
Army Times, 998 F.2d at 1068, district courts have “broad
discretion” to decide whether in camera review is necessary
to determine whether the government has met its burden,
Armstrong v. Executive Office of the President, 97 F.3d 575,
577–78 (D.C. Cir. 1996). Here the district court relied on the
very factors that we have previously deemed sufficient for
this determination, i.e., the description of the document set
forth in the Vaughn index and the agency’s declaration that it
released all segregable material. See Johnson v. Executive
Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002)
(“The combination of the Vaughn index and the affidavits . . .
are sufficient to fulfill the agency’s obligation to show with
‘reasonable specificity’ why a document cannot be further
segregated.”). The district court thus acted well within its
discretion when, without inspecting the document itself, it
ruled that the government had demonstrated that Document
87 contained no segregable portions.
 13

IV.
Because FOIA Exemption 5 covers the four documents
Loving seeks, and because Loving sued under FOIA alone,
we affirm.
So ordered.