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Southern Environmental Law Center v. Mulvaney

United States District Court, W.D. Virginia, Charlottesville Division

September 25, 2019

MICK MULVANEY, in his official capacity as Director of the Office of Management and Budget, Defendant.


          Hon. Glen E. Conrad, Senior United States District Judge

         Southern Environmental Law Center ("SELC") filed this action against Mick Mulvaney, the current director of the federal Office of Management and Budget ("OMB"), seeking to compel OMB to disclose records requested under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The case is presently before the court on the parties' cross-motions for summary judgment. For the reasons set forth below, the motions will be denied without prejudice.


         On March 13, 2017, President Donald J. Trump issued Executive Order 13781 ("E.O. 13781" or the "Executive Order") as part of an effort to "improve the efficiency, effectiveness, and accountability of the executive branch." E.O. 13781 § 1, Pl's Ex. 4, Dkt. No. 13-2. The Executive Order contained separate instructions for "the head of each agency" and "the Director of [OMB]." Id. § 2. Each agency head was given 180 days to "submit to the Director a proposed plan to reorganize the agency, if appropriate, in order to improve the efficiency, effectiveness, and accountability of that agency." Id. Following the receipt of proposed plans from the individual agencies and the opportunity for public input, the Director of OMB was instructed to prepare and submit "a proposed plan to reorganize the executive branch in order to improve the efficiency, effectiveness, and accountability of agencies." Id. OMB's proposed plan was required to include, as appropriate, "recommendations to eliminate unnecessary agencies, components of agencies, and agency programs, and to merge functions, " as well as "recommendations for any legislation or administrative measures necessary to achieve the proposed reorganization." Id. In developing the proposed plan, OMB was required to "consult with the head of each agency." Id. The Executive Order further provided that none of its provisions should "be construed to impair or otherwise affect ... the authority granted by law to an executive department or agency, or the head thereof[.]" Id. §3.

         In April of 2017, Director Mulvaney issued a memorandum to "provide[] agencies guidance on fulfilling the requirements of [the Executive Order]" (the "OMB Memorandum"). OBM Mem. M-17-22 (April 12, 2017) 1, Pl's Ex. 2, Dkt. No. 13-2. The OMB Memorandum explained that "all agencies" would be required to "[s]ubmit an Agency Reform Plan to OMB in September 2017 as part of the agency's FY 2019 Budget submission to OMB, " and that an "initial high-level draft of the Agency Reform Plan [would be] due to OMB by June 30, 2017." Id. The memorandum also outlined the steps OMB would take to formulate its "comprehensive Government-wide Reform Plan." Id. at 2. The memorandum explained that OMB's plan would "rely on three primary sources of input: Agency Reform Plans, OMB-coordinated crosscutting proposals, and public input." Id.

         Section II of the OMB Memorandum provided an overview of the process and timeline for developing and implementing agency reform actions. The memorandum again noted that agencies would have until June 30, 2017 to submit a "high-level draft of their Agency Reform plan that includes the [a]reas the agency is developing for their reforms." Id. at 3. The memorandum explained that OMB would meet with agencies in July of 2017 to "provide feedback" on their high-level drafts and "identify actions that [could] be implemented immediately." Id. "Following the meetings in July, " agencies were expected to "take actions to implement agreed-upon reforms, while continuing to assess reform options for inclusion in the Agency Reform Plan and the FY 2019 Budget." Id. The Agency Reform Plans were due to be filed in September of 2017 as part of the agencies' budget submissions for the 2019 fiscal year ("FY"), and OMB expected to release its "final Government-wide Reform Plan ... as part of the President's FY 2019 Budget request to Congress." Id. at 4. The OMB Memorandum recognized that "[a]gencies [would] begin implementing some reforms immediately while others [would] require Congressional action." Id. at 4.

         The OMB Memorandum also provided insight on the expected components of the Agency Reform Plans. The memorandum listed factors that each agency should consider in analyzing ways to improve its efficiency and effectiveness, including whether some or all of the agency's functions or programs were duplicative; whether services, activities, or functions were non-essential; whether services or functions could be better performed by state governments or private entities; whether the costs of continuing to operate a component or program were justified by the benefits it provided; and whether an agency or program could be redesigned to meet the needs of the public or an agency's partners in a more effective manner. Id. at 6-7.

         On June 30, 2017, agencies submitted high-level drafts of their Agency Reform Plans, as required by the OMB Memorandum. See Decl. of Mark Bussow ("Bussow Decl.") 5, Def.'s Ex. 2, Dkt. No. 21-2. In July of 2017, OMB began meeting with agencies to discuss their draft plans. Id. On September 11, 2017, agencies submitted their Agency Reform Plans to OMB, along with their budget requests for FY 2019. Id. On November 9, 2017, SELC submitted a FOIA request to OMB seeking "records in the custody or control of OMB submitted in connection with Executive Order 13781 by any agency responsible for the management of federal public lands." FOIA Request 1, Pl's Ex. 5, Dkt. No. 13-2. In particular, SELC requested "[all] submissions" from the United States Forest Service, the United States Fish and Wildlife Service, the National Park Service, and the Bureau of Land Management "related to Executive Order 13781, including but not limited to the required reports along with any appendices, attachments, or enclosures, as well as any other related records, whether draft or final."[1] Id. Less than one week later, OMB confirmed receipt of the FOIA request and assigned it reference number 2018-061.

         On January 2, 2018, SELC called OMB to inquire about the status of the FOIA request. Dionne Hardy, OMB's FOIA Officer, acknowledged that a response was due and advised that she would check on the status of the request. Subsequent inquiries in March of 2018 went unanswered.

         On February 12, 2018, OMB released the President's Budget for Fiscal Year 2019 (the "President's Budget"), which included a summary of the efforts undertaken in response to the Executive Order. See President's Budget 10, Pl's Ex. 4, Dkt. No. 13-2. The President's Budget indicated that the plan to reorganize the Executive Branch would include "changes that can be accomplished with existing authorities as well as others that would require new funding and authorities." Id. The President's Budget also indicated that some changes had already been implemented. See Id. ("For instance, in order to improve customer service, the Department of the Interior has already begun to shift employees away from Washington, District of Columbia, closer to the citizens the Agency serves.").

         As of May 30, 2018, OMB had still not responded to the plaintiffs FOIA request. Consequently, SELC filed the instant action seeking to compel OMB to provide all nonexempt, responsive documents.

         On June 12, 2018, Assistant United States Attorney Sara Winn, who had been assigned to represent OMB, contacted SELC's counsel via email and inquired about scheduling a conference call regarding the pending FOIA request. SELC Senior Attorney Kimberley Hunter participated in the requested conference call, along with another SELC attorney, Morgan Butler; Ms. Winn; and Matt Carney, OMB's Assistant General Counsel. During the conference call, Mr. Carney asked SELC to clarify whether it was seeking email communications. According to SELC, Mr. Carney indicated that OMB would be able to process the FOIA request more quickly if email communications were excluded from the search for responsive documents. Ms. Hunter subsequently confirmed that SELC was not seeking to obtain email communications in response to the FOIA request.

         On June 21, 2018, OMB publicly released its Government-wide Reform Plan, titled "Delivering Government Solutions in the 21st Century[:] Reform Plan and Reorganization Recommendations." See Government-wide Reform Plan, Pl's Ex. 3, Dkt. No. 13-2; see also Bussow Decl. 5. The plan included, among others, proposed changes within the Department of the Interior arid the Department of Agriculture. OMB reported that "[m]any of the more straightforward, agency-specific organizational improvement opportunities were included in the FY 2019 Budget released in February 2018 or were adopted by agencies under existing authorities." Id. at 9.

         SELC and OMB had another conference call on June 27, 2018, during which they discussed the range of documents responsive to SELC's FOIA request. According to SELC, "Mr. Carney indicated that there were approximately 60-70 responsive documents." Declaration of Kimberley Hunter ("Hunter Decl.") ¶ 15, Pl's Ex. 6, Dkt. No. 13-2. However, OMB maintains that it "told SELC that the search revealed a handful of responsive documents." Def.'s Reply Br. 5, Dkt. No. 21 (citing Declaration of Heather Walsh ("Walsh Decl.") ¶ 8, Def.'s Ex. 1, Dkt. No. 21-1 (averring that OMB Office of General Counsel staff verbally represented to SELC's counsel that "a search would likely result in a handful of responsive documents")).

         By letter dated July 18, 2018, OMB formally responded to the pending FOIA request and advised the plaintiff that the agency had located and withheld two documents. The letter stated, in pertinent part, as follows:

In response to your FOIA request, OMB conducted a search of its files and located two documents, totaling 64 pages that are responsive 1 to the request. We are withholding these documents in full pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5), because they consist of pre-decisional and deliberative internal Executive Branch communications, the disclosure of which would inhibit the frank and candid exchange of views that is necessary for effective government decision-making.
This concludes OMB's response to your request.

Response to FOIA Request, Pl's Ex. 7, Dkt. No. 13-2.

         On September 5, 2018, SELC moved for summary judgment on the ...

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