Carr v. National Labor Relations Board
MEMORANDUM OPINION AND ORDER pursuant to defendant National Labor Relations Board's ("NLRB") 12 motion for summary judgment, directing plaintiff to respond to the summary judgment motion by 11/20/2012, with any reply filed by the NLRB no later than 12/3/2012; denying plaintiff Kevin L. Carr's 14 MOTIONS to lift stay on discovery and to permit him to conduct discovery; denying as moot the 10 joint motion to set initial scheduling deadlines. Signed by Judge John T. Copenhaver, Jr. on 11/8/2012. (cc: attys; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
KEVIN L. CARR,
Civil Action No. 2:12-0871
NATIONAL LABOR RELATIONS BOARD,
MEMORANDUM OPINION AND ORDER
Pending are the defendant National Labor Relations Board's
("NLRB") motion for summary judgment filed August 10, 2012, and
plaintiff Kevin L. Carr's motions to lift stay on discovery and to
permit him to conduct discovery, filed August 24, 2012.1
This action involves a request made pursuant to the Freedom
of Information Act ("FOIA"), 5 U.S.C. § 552.
On January 26, 2012,
Mr. Carr sought the production of drafts of a January 24, 2012, memo
prepared by the NLRB Acting General Counsel, referred to as "OM
On March 1, 2012, the NLRB FOIA Office denied the request.
Also pending is the joint motion to set initial scheduling
deadlines, which was embedded within the amended Rule 26(f) report
filed July 6, 2012. Inasmuch as a schedule was entered July 10, 2012,
it is ORDERED that the joint motion be, and it hereby is, denied as
On March 7, 2012, Mr. Carr appealed the unfavorable
On March 23, 2012, the NLRB denied the appeal,
resulting in exhaustion of the applicable administrative process.
On March 27, 2012, Mr. Carr instituted this action seeking to compel
the NLRB to disclose to him the requested record.
On July 6, 2012,
the parties filed an amended joint report of their planning meeting,
along with a request to set an initial schedule.
The joint report
stated, inter alia, as follows:
Having conferred further, the parties now agree that
discovery in this matter should be stayed at least until
the NLRB has filed its summary judgment motion and
supporting Vaughn index, affidavit(s), and memorandum,
and that Mr. Carr should have the opportunity, before his
opposition to the NLRB’s summary judgment motion is due,
to file a motion to lift the stay of discovery, and to have
such motion to lift the stay ruled upon before his
opposition is due. The parties agree that Mr. Carr’s
filing of a motion to lift the stay does not prejudice the
NLRB’s ability to make any appropriate argument in
opposition to such motion.
(Jt. Rep. at 2).
The parties additionally discussed the other steps
to be taken in the litigation following the filing of the NLRB's
Mr. Carr intends to file a motion to lift the stay of
discovery if the NLRB’s Vaughn index and affidavit(s)
state that the documents it has withheld pursuant to
Exemption 5 of the Freedom of Information Act, 5 U.S.C.
§ 552(b)(5) (“the FOIA”) are predecisional (which they
will). In such case, the parties agree that Mr. Carr may
request the Court’s permission to seek discovery on the
nature and scope of the “decision” at issue and to
depose the NLRB’s FOIA officer and the Acting General
Counsel. In turn, the NLRB may oppose the motion to lift
the stay on the grounds that, inter alia, Mr. Carr may not
seek to discover the deliberative thought processes of
agency officials and that discovery is not appropriate in
FOIA cases prior to a court’s decision on the government’s
summary judgment motion.
On July 10, 2012, the court entered its scheduling order
setting forth the following case events and dates:
NLRB dispositive motion, Vaughn index, affidavits, and
supporting memorandum by August 10, 2012;
Mr. Carr's motion to lift the stay of discovery by August
NLRB opposition to the motion to lift stay by September
7, 2012; and
Mr. Carr's reply to the NLRB opposition by September 14,
(Sched. Ord. at 1-2).
On August 10, 2012, the NLRB moved for summary judgment,
including its Vaughn index and the declaration of Barry Kearney, with
various exhibits attached.
The NLRB asserts that it properly
withheld under FOIA Exemption 5 the record sought by Mr. Carr, which
it characterizes as drafts of an NLRB Operations-Management
Memorandum, the final version of which was distributed to the public
and to NLRB Regional Offices as guidance.2
The NLRB asserts that the
public memorandum -- and the non-public drafts at issue herein --
Exemption 5 refers to that portion of section 552 that shields from
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).
report on the prosecutorial decisions of the NLRB Acting General
Counsel concerning whether or not to issue an administrative
complaint, and prosecute as a violation of the NLRA, an employer’s
actions as they relate to employees’ use of social media.
asserts that "[d]isclosure of the withheld drafts would reveal the
Acting General Counsel’s deliberations with subordinates in
developing case-handling guidance in the emerging area of social
(Mot. for Summ. J. at 1; see also Vaughn Index at 1 ("[T]he
withheld documents are two intra-agency memoranda falling within the
deliberative process privilege incorporated in FOIA Exemption 5")).
On August 24, 2012, Mr. Carr moved to lift the stay and
He notes that the NLRB provided no declaration
from the two individuals who revised the drafts of OM 12-31, namely,
the Acting General Counsel and an unnamed staff attorney.
asserts Mr. Kearney did not draft OM 12-31, made no revisions to it,
and merely offers speculation respecting the thought processes of
the Acting General Counsel and the unnamed staff attorney.
additionally challenges the invocation of Exemption 5, noting the
NLRB "argues that changes in sentences, phrases, headings and the
order in which the cases were listed in OM 12-31 satisfy the predicate
for Exemption 5 of FOIA."
(Mot. to Stay at 3).
He concludes that
OM 12-31 is merely a report intended by the NLRB to be viewed by the
public of matters that transpired in the past.
Based upon the putatively deficient showing in support of
applying Exemption 5, Mr. Carr asserts that he should be permitted
to depose the Acting General Counsel and the unnamed staff attorney
in order to ascertain "basic facts like:"
a. What types of changes in the order of case descriptions
were made (i.e., was it simply moving the first case listed
in draft 1 to the third case from the bottom in draft 2)?
b. If so, what type of deliberation –- and what levels of
effort and time were expended by the Board -– in connection
with determining how far down the page a case should
appear in the final draft of OM 12-31?
c. Were revisions to sentences and phrases occasioned by
a typographical error, a fundamental misunderstanding of
grammar or the facts of a case, or for some other reason?
d. Were revisions to a heading occasioned by a
typographical error, a fundamental misunderstanding of
grammar or the facts of a case, or for some other reason?
e. Were the revisions to facts in the Facebook case
referenced by the Board a result of a misunderstanding by
the drafter or editor of the facts? Did those facts somehow
change? Were there facts that were not part of the public
record of that case or somehow otherwise
protected from disclosure?
f. In what ways would the public be “misguided” or
“mislead” as claimed by the Board should the drafts be
produced to Plaintiff?
g. Does the Board believe –- as Plaintiff’s [sic] believes
the Board believes –- that all drafts of any document
prepared by the Board are exempt from production under
FOIA, period? If so, what is the basis for that misguided
h. In what order were the revisions made?
i. Was there any research -- factual or legal -– involved
in the decision by the drafter or editor in connection with
any of the revisions made to the drafts of OM 12-31?
j. Were there any cases initially included in any of the
drafts of OM 12-31 that were not contained in the final
k. Did the Board keep all drafts of OM 12-31? If so, why
did the Board’s information officer suggest to the
undersigned that some or all drafts may have been
l. What was the length of time it took to make each “round”
m. Which revisions, if any, were simply a function of
wordsmithing or correcting typographical or grammatical
n. Do the Acting General Counsel and the unnamed/
unidentified “Division of Advice staff attorney” even
agree with Mr. Kearney’s sworn characterization of their
alleged deliberative and contemplative efforts with
respect to OM 12-31?
(Mot. to Stay at 3-4).
As noted in Rein v. U.S. Patent & Trademark Office, 553
F.3d 353 (4th Cir. 2009), a document will be privileged from
disclosure under the FOIA if it "'satisfies two conditions: its
source must be a Government agency, and it must fall within the ambit
of a privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.'"
Id. at 371
(quoting Dep't of the Interior v. Klamath Water Users Protective
Ass'n, 532 U.S. 1, 8 (2001).
The evidentiary shields upon which a
government agency might rely under Exemption 5 include the
attorney-client privilege, the attorney-work product privilege, and
the deliberative process privilege.
Rein, 553 F.3d at 371; see
N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149–50 (1975). A
bedrock policy reason underlies Exemption 5.
It is “designed to
protect the quality of administrative decisionmaking by ensuring
that it is not done ‘in a fishbowl.’”
City of Virginia Beach, Va.
v. U.S. Dep't of Commerce, 995 F.2d 1247, 1252 (4th Cir. 1993); see
also Klamath, 532 U.S. at 8–9.
Our court of appeals' decision in Simmons v. U.S. Dep't
of Justice, 796 F.3d 709 (4th Cir. 1986), is the seminal case in this
circuit respecting discovery in FOIA matters.
The decision in
Simmons observed as follows:
[T]he district court has the discretion to limit discovery
in FOIA cases and to enter summary judgment on the basis
of agency affidavits in a proper case. Goland v. Central
Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir.1978),
cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed. 759
(1980). As the Goland court expressed the rule, “[t]he
agency's affidavits, naturally, must be ‘relatively
detailed’ and nonconclusory and must be submitted in good
faith. But if these requirements are met, the district
judge has discretion to forgo discovery and award summary
judgment on the basis of affidavits.” Id.; see also
Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir.
Id. at 711-12.
Our court of appeals, interpreting Simmons, has
additionally observed that discovery is customarily circumscribed,
or entirely disallowed, in the FOIA context.
See Heily v. U.S. Dep't
of Commerce, No. 03-1309, 2003 WL 21513059, at *2 (4th Cir. Jul. 3,
2003) (“It is well-established that discovery may be greatly
restricted in FOIA cases.”).
In the unusual case when discovery has
been allowed it is often limited to the agency's search, indexing
and classification procedures. See Weisberg v. United States Dep't
of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980); see also Public
Citizen Health Research Group v. Food & Drug Admin., 997 F. Supp.
56, 72 (D.D.C. 1998) (holding that discovery is limited to
investigating the scope of agency's search for responsive documents,
the agency's indexing, and the like).
Mr. Carr has not demonstrated at this time that discovery
is necessary to properly challenge the NLRB's summary judgment
It is, accordingly, ORDERED that Mr. Carr be, and he hereby
is, directed to respond to the NLRB's summary judgment motion on or
before November 20, 2012, with any reply filed by the NLRB no later
than December 3, 2012.
In the event that the court later concludes
additional elaboration is required of the NLRB, either by affidavit
or documentary evidence, or that limited discovery is warranted, an
appropriate order will issue.
It is further ORDERED that the motions
to lift stay on discovery and to permit Mr. Carr to conduct discovery
be, and they hereby are, denied.
The Clerk is requested to transmit this written opinion
and order to all counsel of record and to any unrepresented parties.
November 8, 2012
John T. Copenhaver, Jr.
United States District Judge