F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 29 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ROBERT CASAD, JR., PH.D,
Plaintiff-Appellant,
v. No. 01-3368
UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN
SERVICES,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 00-CV-1340-MLB)
Submitted on the briefs:
Robert C. Casad, Jr., Ph.D., Pro Se.
Robert D. McCallum, Jr., Assistant Attorney General; James E. Flory, United
States Attorney; Leonard Schaitman and Freddi Lipstein, Attorneys, Appellate
Staff, Civil Division, United States Department of Justice, Washington, D.C.;
Patricia Mantoan, Of Counsel, Office of General Counsel, Department of Health
and Human Services, for Defendant-Appellee.
Before SEYMOUR , PORFILIO , and O’BRIEN , Circuit Judges.
SEYMOUR , Circuit Judge.
Robert Casad, Jr. filed suit against the United States Department of Health
and Human Services challenging the denial of his request under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, for the complete “summary statement”
associated with a grant application funded by the National Institutes of Health
(NIH). 1 After determining that NIH properly withheld the requested information
under FOIA’s deliberative process privilege, the district court entered summary
judgment in favor of defendant. We affirm. 2
I.
The summary statement sought by Mr. Casad was created during peer
review of a training grant application submitted to the National Institute on Aging
(NIA), one of the institutes within the NIH. Peer review plays an important
role in the NIH’s competitive grant application process. See 42 U.S.C. §§ 289a,
289a-1. A scientific review group, composed of experts qualified by training and
1
The named defendant in this case is the United States Department of Health
and Human Services (HHS). The NIH, dedicated to research and development
activities in the area of public health and welfare, is an agency of the Public
Health Service, 42 U.S.C. §§ 203, 281, which is in turn administrated by the
Secretary of Health and Human Services, § 241.
2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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experience in particular scientific or technical fields, evaluates the scientific and
technical merit of grant applications. The group first decides whether the
application is deemed worthy of funding under NIH selection criteria. If
a majority of members of the group do not recommend the application for
approval, then the application does not proceed through the funding process.
See § 289a-1(a)(2). Approximately half the applications fall within the likely
pool for making funding decisions. For these applications, the group assigns
a numerical priority rating as a tool to permit applications to be funded in order
of their priority.
A staff administrator then compiles a summary statement, which contains
the scientific review group’s recommendation, the priority score, and a summary
of the factors considered on peer review. It also recounts the reviews of the
individual peer reviewers, along with a summary of any group discussion. A copy
of the summary statement is sent to the principal investigator of the proposed
research so that the investigator may submit rebuttal comments.
For approved grant applications with direct costs exceeding $50,000, the
summary statement is sent to the next stage of the review process–conducted by
the advisory council for the appropriate institute. The purpose of this second
level of review is to choose, from among meritorious projects, those most relevant
to the nation’s health needs. The advisory council, which includes both scientists
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and lay community leaders, usually concurs with the peer review determination of
merit. In making its recommendation, however, it also takes into account the
broad background of research in universities and other institutions, the need to
initiate research in new areas and the degree of relevance of the proposed project
to the institute’s mission. Without a favorable recommendation from the council,
the grant cannot be funded. See § 284(b)(2)(B)(ii).
Upon completion of both levels of review, the Secretary of the Department
of Health and Human Services, acting through the institute’s director, makes the
final decision on whether to fund the proposed project. §§ 284(b)(2), 288. The
record shows that the director funds a proposal based on the availability of funds,
“the proposed research training’s relevance to NIA priorities and to the timeliness
of the research training,” as well as “the perceived scientific quality of the
application as judged by initial peer review.” Aplt. App. at 93. A successful
applicant is given notice of a grant award and a general description of the funded
project is made available to the public.
The grant at issue in this case was an NIA training grant awarded to
researchers at the University of Michigan. Because the requested grant exceeded
$50,000, peer review and also review by the National Advisory Council on Aging
was required. The Council did not make a record of its deliberations on the
application.
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Mr. Casad made a FOIA request for the grant’s entire documentary record.
Although his request was eventually granted for the most part, portions of the
summary statement were redacted. Sections containing evaluative comments and
the scientific merit score were withheld, based on an administrative determination
that the redacted information was protected from public disclosure by the
deliberative process and privacy exemptions to FOIA’s general requirement that
the federal government release information to the public.
Mr. Casad brought suit in district court, arguing that the NIH had
improperly invoked the exemptions and that the NIH had a legal duty under FOIA
to release the complete summary statement. The parties filed cross-motions for
summary judgment. The district court granted summary judgment in favor of
defendant, holding that the deliberative process exemption applied. Mr. Casad
appeals that ruling, and also attempts to appeal the district court’s refusal to
expedite his case under the priority of civil actions statute, 28 U.S.C. § 1657(a).
II.
FOIA “provides the public with a right of access to federal agency
records.” Herrick v. Garvey, No. 01-8011, 2002 WL 1648337, *2 (10th Cir.
July 24, 2002). Its “purpose is to ensure an informed citizenry, vital to the
functioning of a democratic society, needed to check against corruption and to
hold the governors accountable to the governed.” Id. (quotations omitted). The
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right of access, however, “is subject to nine exemptions. See 5 U.S.C. § 552.”
Id. “Congress created these exemptions because it ‘realized that legitimate
governmental and private interests could be harmed by release of certain types of
information.’‘ United States Dep’t of Justice v. Julian , 486 U.S. 1, 8 (1988)
(quoting FBI v. Abramson , 456 U.S. 615, 621 (1982)).
“FOIA is to be broadly construed in favor of disclosure, and its exemptions
are to be narrowly construed.” Herrick, 2002 WL 1648337, at *2 (quotation
omitted). “If an agency has been sued by an individual because the agency has
refused to release documents, the agency bears the burden of justifying
nondisclosure.” Id. (quotation omitted).
“Federal courts are granted the authority to enjoin the agency from
withholding records, § 552(a)(4)(B),” and to determine whether records fall
within the statutory exemptions listed in 5 U.S.C. § 552(b). Id. “In any FOIA
action challenging an agency decision to withhold records, the district court
reviews de novo the agency’s decision not to disclose.” Id. On appeal, the initial
inquiry is whether the district court had an adequate factual basis on which to
base its decision. Id. Assuming this prerequisite is met, in a summary judgment
case such as this one, we next “review de novo the district court’s legal
conclusions that the requested materials are covered by the relevant FOIA
exemptions.” Hale v. United States Dep’t of Justice , 99 F.3d 1025, 1029
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(10th Cir. 1996) (quotation omitted). As in all summary judgment cases, we
examine the record and reasonable inferences therefrom in the light most
favorable to the nonmoving party. See id .
III.
The district court determined that the redacted material from the summary
statement was properly withheld under FOIA’s exemption five, which covers
documents which a private litigant could not obtain from the agency through
normal discovery rules. See Dep’t of Interior v. Klamath Water Users Protective
Ass’n , 532 U.S. 1, 8 (2001). 3
One class of memoranda shielded by exemption
five includes “agency reports and working papers subject to the ‘executive’
privilege for predecisional deliberations.” Fed. Open Mkt. Comm. of Fed.
Reserve Sys. v. Merrill, 443 U.S. 340, 353 (1979).
This deliberative process 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, and its object is to enhance the
quality of agency decisions by protecting open and frank discussion among those
3
Section 552(b)(5) provides that FOIA disclosure requirements do not apply
to “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.”
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who make them within the Government.” Klamath Water Users Protective Ass’n,
532 U.S. at 8-9 (quotations and citations omitted).
Mr. Casad argues that there are two reasons why exemption five does not
protect the withheld material from disclosure. First, he states that the summary
statement is the final opinion of the NIA on the scientific merit of a grant
application. Second, he states that a scientific review group is itself an agency
within the meaning of FOIA and the summary statement constitutes the agency’s
opinion.
A.
With regard to Mr. Casad’s first argument, the essential question is whether
the requested summary statement is “expressly subject to disclosure” as the final
opinion “explaining the reasons” for a funding decision already made or, instead,
a predecisional memorandum protected from disclosure under the deliberative
process privilege. Renegotiation Board v Grumman Aircraft Eng’g Corp. ,
421 U.S. 168, 170 (1975). Case law identifies two factors helpful in determining
whether the privilege applies:
the “nature of the decisionmaking authority vested in the officer or
person issuing the disputed document,” Taxation with Representation
Fund v. IRS , 646 F.2d 666, 678 (D.C. Cir. 1981), and the relative
positions in the agency’s “chain of command” occupied by the
document’s author and recipient. [ Arthur ] Andersen [& Co. v. IRS ],
679 F.2d [254,] 258 [(D.C. Cir. 1982)]; see also Schlefer v. United
States , 702 F.2d 233, 238 (D.C. Cir. 1983) (intra-agency memoranda
from “subordinate” to “superior” more likely to be deliberative in
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character than documents traveling in opposite direction);
Bristol-Myers Co. v. FTC , 598 F.2d 18, 28 n. 20 (D.C. Cir. 1978)
(“[D]etailed information about the agency’s decision-making process
is essential . . . to a fair determination of the agency’s [deliberative
process] claims.”).
Senate of the Com. of Puerto Rico on Behalf of Judiciary Comm. v. United States
Dep’t of Justice, 823 F.2d 574, 586 (D.C. Cir. 1987).
When the record is viewed in the light of these factors, it is apparent that
the summary statement is a predecisional communication in the NIH funding
process. The scientific review group’s charge is confined to a determination of
scientific merit and computation of a priority score. The summary statement
reflecting the group’s thoughts and conclusions is sent to the advisory council
and, after approval there, on to the NIA director. Although an important
consideration in the director’s funding decision, the peer group evaluation is not
dispositive. At the end of the day, the director alone has the power to fund an
application. The NIH met its burden of demonstrating that the summary statement
is a predecisional, deliberative document.
Mr. Casad argues that, even if this is true, exemption five still does not
protect the summary statement. His theory is that the statement contains the only
explanation of the reasons why NIH funded the grant application and should
therefore be disclosed as either an adopted opinion, Aplt. Br. at 34-40, or “part”
of the agency’s “final disposition,” id. at 31. We recognize Mr. Casad’s
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frustration with the lack of an explanatory agency opinion. To adopt his position,
however, would require that every document relied upon by an agency in reaching
a decision be subject to disclosure. Put another way, the greater the role
a document played in the predecisional process, the more likely the document
would be subject to disclosure. This argument turns exemption five on its head.
The Supreme Court has considered and rejected both aspects of
Mr. Casad’s proposed approach. In NLRB v. Sears, Roebuck & Co. , 421 U.S. 132,
161 (1975), the Court required express adoption of a predecisional document as
a prerequisite to an agency waiver under exemption five. See id. (stating that the
agency must “expressly . . . adopt or incorporate [the document] by reference” in
a final decision). The Court has also refused to equate reference to a report’s
conclusions with adoption of its reasoning. It is only the latter that destroys the
privilege. See Grumman , 421 U.S. at 184-85 . There is no indication in the
record that, in funding the NIA training grant, the NIH expressly adopted the
reasoning of the scientific peer group. 4
4
In his reply brief, Mr. Casad asserts that the record would have been more
complete on this issue if he had been allowed discovery in the trial court. Reply
Br. at 23. We note, however, that Mr. Casad himself submitted a motion for
summary judgment and that, in responding to defendants’ motion, he did not take
advantage of Fed. R Civ. P. 56(f), which permits a litigant opposing a summary
judgment motion to show that he cannot “for reasons stated present by affidavit
facts essential to justify the party’s opposition.”
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Further, “[t]he Freedom of Information Act imposes no independent
obligation on agencies to write opinions. It simply requires them to disclose the
opinions which they do write.” Grumman, 421 U.S. at 192. “If the public interest
suffers from an agency’s failure to explain, then “the remedy is for Congress to
require it to do so.” Id. The summary statement need not be disclosed as either
an adopted opinion or part of a final opinion.
B.
Mr. Casad also argues that the summary statement may be predecisional in
the broad context of the NIH process, but it constitutes the final decision of the
scientific review group, which is itself an agency. He, like the unsuccessful
plaintiff in Grumman , reasons that a report which is a final product of a
governmental entity “must therefore be disclosable if” the entity is a separate
agency. Id. at 188. The assumption is that “the final product” of an agency’s
deliberations “may never fall within Exemption 5.” Id. at 188. This “premise is
faulty” because it overlooks
the fact that Exemption 5 does not distinguish between inter-agency
and intra-agency memoranda. By including inter-agency memoranda
in Exemption 5, Congress plainly intended to permit one agency
possessing decisional authority to obtain written recommendations
and advice from a separate agency not possessing such decisional
authority without requiring that the advice be any more disclosable
than similar advice received from within agency.
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Id. at 187-88. Accordingly, the Supreme Court concluded, that it was
“unnecessary to decide whether” the subordinate agency is “an agency for FOIA
purposes.” Grumman , 421 U.S. at 187-88. 5
The entity at issue in Grumman was a regional board which had “some final
decisional authority” to resolve matters with less than $800,000 at stake, but only
investigative and advisory authority in matters involving a higher amount. Id.
at 173. On the higher-value cases, the full board made the final decision. Id.
at 185. The FOIA request was limited to documents generated with regard to this
second class of cases. The Court viewed the regional board’s power to issue
orders in lower-value cases irrelevant to its decision. Id. at 188 & n.25.
The Grumman reasoning is directly applicable to Mr. Casad’s argument.
Although a scientific review group may have the power to terminate consideration
of an application by determining it has little scientific merit, it has no power to
actually fund an application. Mr. Casad seeks a summary statement describing
a proposal which survived peer review and was forwarded to the advisory counsel
and then on to the institute director for a funding decision. Whether or not a
5
We note that the district court and the magistrate judge reached, analyzed,
and rejected Mr. Casad’s argument that a scientific review group is an agency
subject to FOIA. We need not reach this issue.
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review group can be considered an agency for FOIA purposes, its lack of funding
authority brings the summary statement within the protection of exemption five. 6
IV.
Finally, Mr. Casad seeks to appeal the district court’s denial of his motion
to expedite its ruling. The district court has resolved the case; this court can
provide no relief for any alleged delay. When events occur that prevent the
appellate court from granting any effective relief, an issue is moot. Phelps v.
Hamilton , 122 F.3d 885, 891 (10th Cir. 1997).
Mr. Casad, however, argues that the issue falls under an exception to the
mootness doctrine, citing Weinstein v. Bradford , 423 U.S. 147, 149 (1975) (per
curiam). To meet this exception to mootness, two conditions must be
simultaneously satisfied: “(1) the challenged action [is] in its duration too short
to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party [will] be subject to the same action
again.” Id. Mr. Casad states that the expediting issue may arise repeatedly in his
prospective legal practice (after he is admitted to the bar), yet evade review.
6
Because we determine that exemption five applies to the summary
statement, we do not reach the question of whether it is protected under
exemption six, “which protects: personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6).
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Speculation about future court cases is insufficient to meet the Weinstein
standard. As to this issue, we dismiss Mr. Casad’s appeal.
V.
We thus hold that the requested summary statement falls within the
deliberative process privilege included in FOIA exemption five. We AFFIRM
the decision of the district court denying Mr. Casad’s request to compel additional
disclosure. We dismiss the appeal of the district court’s denial of Mr. Casad’s
motion to expedite his action. We grant Mr. Casad’s motion to file an appendix,
but deny his motion to expedite the appeal and his motion for costs.
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Casad v. United States Department of Health & Human Services
Court: Court of Appeals for the Tenth Circuit
Date filed: 2002-08-29
Citations: 301 F.3d 1247
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