United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad, Senior United States District Judge
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.
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.
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
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.
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.
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." Id. Less than one week later, OMB
confirmed receipt of the FOIA request and assigned it
reference number 2018-061.
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.
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.").
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
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.
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.
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
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
This concludes OMB's response to your request.
Response to FOIA Request, Pl's Ex. 7, Dkt. No. 13-2.
September 5, 2018, SELC moved for summary judgment on the