Log Cabin Republicans v. United States of America et al

Filing 116

MEMORANDUM in Opposition to MOTION for Discovery regarding Plaintiff's Motion to Compel Production of Documents #104 filed by Defendants Donald H Rumsfeld, United States of America. (Attachments: #1 Declaration of Mr. Bill Carr)(Parker, Ryan)

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Log Cabin Republicans v. United States of America et al Doc. 116 1 TONY WEST Assistant Attorney General 2 GEORGE S. CARDONA 3 Acting United States Attorney 4 VINCENT M. GARVEY Deputy Branch Director 5 PAUL G. FREEBORNE 6 W. SCOTT SIMPSON RYAN B. PARKER 7 U.S. Department of Justice Civil Division 8 Federal Programs Branch Post Office Box 883 9 Washington, D.C. 20044 Telephone: (202) 353-0543 10 Facsimile: (202) 616-8202 E-Mail: paul.freeborne@usdoj.gov 11 Attorneys for Defendants United States 12 of America and Secretary of Defense 13 14 16 17 v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV04-8425 VAP (Ex) SUPPLEMENTAL MEMORANDUM REGARDING PLAINTIFF'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS 15 LOG CABIN REPUBLICANS, 18 UNITED STATES OF AMERICA AND ROBERT GATES, Secretary of Defense, 19 Defendants. 20 21 22 23 24 25 26 27 28 Plaintiff has brought a facial challenge to the constitutionality of the federal statute, 10 U.S.C. § 654, and implementing regulations that comprise the military's policy on homosexual conduct (the "Policy"). On February 22, 2010, Plaintiff filed a Motion to Compel the Production of Documents. In its motion, Plaintiff urged the Court to compel the Government to produce documents that are SUPPLEMENTAL MEMORANDUM REGARDING PLAINTIFF'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -1- Dockets.Justia.com 1 protected by the deliberative process privilege. Plaintiff also petitioned the Court 2 to compel the Government to search for responsive documents outside of the 3 Department of Defense (the "DoD"), the agency charged with administering the 4 Policy. Because the Government has properly asserted the deliberate process 5 privilege and reasonably limited its search for responsive documents to the DoD, 6 Plaintiff's motion to compel should be denied. 7 I. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Government Has Properly Asserted the Deliberative Process Privilege A. There Are Only Two Categories of Documents in Dispute In its portion of the Joint Stipulation, Plaintiff alleged that the Government improperly asserted the deliberative process privilege in response to over a dozen document requests. If Plaintiff had conferred with the Government before filing its motion, as required by the Local Rules, it would have learned that the Government is only asserting the deliberative process privilege over two categories of documents that are responsive to the document requests Plaintiff has identified: drafts and documents relating to the drafting of DoD issuances, and internal memoranda concerning reports issued by the Personnel Security Research and Education Center ("PERSEREC"). B. Both Categories Are Pre-decisional and Deliberative To be protected under the deliberative process privilege a document must be both pre-decisional and deliberative. Lahr v. National Transp. Safety Bd., 569 F.3d 964, 979 (9th Cir. 2009). "A `predecisional' document is one prepared in order to assist an agency decision maker in arriving at his decision, and may include recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Id. (quoting Assembly of Cal. v. U.S. Dep't of Commerce, 968 F.2d 916, 920 (9th Cir.1992)). "A predecisional document is a part of the `deliberative process,' if the disclosure of the materials would expose an SUPPLEMENTAL MEMORANDUM REGARDING PLAINTIFF'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -2- 1 agency's decisionmaking process in such a way as to discourage candid discussion 2 within the agency and thereby undermine the agency's ability to perform its 3 functions." Id. 4 The two categories of documents at issue here meet both requirements. The 5 documents relating to the drafting of DoD issuances were created before the 6 issuances themselves were promulgated, and the documents contain agency 7 deliberations regarding the content of the issuances. See Exhibit 1, Declaration of 8 Mr. Bill Carr, pg. 3-5. Likewise, the internal memoranda concerning the 9 PERSEREC Reports were created before the reports themselves were issued, and 10 the memoranda contain deliberations regarding the findings and conclusion in the 11 reports. Id. at 5-6. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. The Deliberative Process Privilege Has Been Formally Invoked When a claim of deliberative process privilege is challenged, the party asserting the privilege must provide a formal invocation of the privilege by "an agency head or a subordinate with high authority." Mobil Oil Corp. v. Department of Energy, 102 F.R.D. 1, 6 (N.D.N.Y.1983); see also Freeman v. Seligson, 405 F.2d 1326, 1338-39 (D.C. Cir. 1969) (declaration from agency head required only after challenge to the privilege has "been adequately bolstered by a general showing of relevance and good cause.") The Government stated in its responses to a select number of Plaintiff's document requests that certain responsive documents may be subject to the deliberative process privilege. Because Plaintiff did not confer with the Government before bring this motion, the Government was unaware that Plaintiff planned to challenge the assertion of the privilege until receiving Plaintiff's portion of the Joint Stipulation. In response to Plaintiff's challenge, the Government has provided, as an attachment to this Supplemental Memorandum, the declaration of Mr. Bill Carr, Deputy Under Secretary of Defense for Military Personnel Policy, SUPPLEMENTAL MEMORANDUM REGARDING PLAINTIFF'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -3- 1 formally invoking the deliberative process privilege. Mr. Carr is an individual of 2 high authority within the DoD and oversees, among other things, the office 3 primarily responsible for administering the Policy. In his declaration, Mr. Carr 4 invokes the privilege based on his detailed review, and he explains for each group 5 of documents why asserting the privilege is necessary to assure the free flow of 6 ideas and candid discussion of alternatives as the DoD continues to conduct studies 7 and implement policy decisions through its issuances. Exhibit 1, Declaration of Mr. 8 Bill Carr, pg. 2-6. 9 Because the Government has properly asserted the deliberative process 10 privilege over documents that are both predecisional and deliberative, and has 11 provided a declaration from an individual of high authority at DoD formally 12 invoking the privilege, Plaintiff's motion seeking to compel the production of 13 deliberative documents should be denied. 14 II. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Government Has Reasonably Limited Its Search for Responsive Documents to the DoD Plaintiff's suit challenges a policy that is administered exclusively by and applies exclusively to the DoD. Because the DoD administers the Policy, the injunctive and declaratory relief that Plaintiff seeks must necessarily lie against that agency. In addition, to the extent the Administrative Procedures Act ("APA") provides the necessary waiver of sovereign immunity for Plaintiff's claims, that waiver is premised on "agency action," 5 U.S.C. § 702, which for this matter is necessarily confined to the agency charged with administering 10 U.S.C. § 654: the DoD. Moreover, because the Policy applies exclusively to the DoD, documents housed outside of that agency are not likely to be relevant to Plaintiff's claims in this case and thus it is unduly burdensome for the Government to conduct a broader search. For all of these reasons, the Government has reasonably limited its search for responsive documents to the DoD, and Plaintiff's motion, seeking to compel Defendants to search outside of DoD, should be denied. SUPPLEMENTAL MEMORANDUM REGARDING PLAINTIFF'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 -4- 1 III. 2 Plaintiff's Motion to Compel Should Be Denied As set forth above, Plaintiff's request that the Court compel the Government 3 to produce documents properly protected by the deliberative process privilege and 4 search for responsive documents outside of the DoD is both unreasonable and 5 unsupported by law. Accordingly, Plaintiff's motion to compel should be denied. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPPLEMENTAL MEMORANDUM REGARDING PLAINTIFF'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 Date: March 4, 2010 Respectfully submitted, TONY WEST Assistant Attorney General GEORGE S. CARDONA Acting United States Attorney VINCENT M. GARVEY Deputy Branch Director /s/ Ryan B. Parker PAUL G. FREEBORNE W. SCOTT SIMPSON RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 E-Mail: paul.freeborne@usdoj.gov COUNSEL FOR DEFENDANTS -5- 1 2 CERTIFICATE OF SERVICE I hereby certify that on March 4, 2010, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send a 3 Notice of Electronic Filing to each of the following: 4 Patrick O Hunnius Daniel J Woods 5 phunnius@whitecase.com dwoods@whitecase.com 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPPLEMENTAL MEMORANDUM REGARDING PLAINTIFF'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 /s/ Ryan B. Parker Ryan B. Parker -6-

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