Opinion
No. 2:01cv377
July 30, 2002
ATTORNEYS FOR PLAINTIFF: Frank M. Northam, Webster, Chamberlain Bean, Washington, DC, Colby M. May, The American Center for Law and Justice, Washington, DC, Alan P. Dye, Webster, Chamberlain Bean, Washington, DC, James Bopp, Jr., Webster, Chamberlain Bean, Washington, DC, Heidi Karin Abegg, Webster, Chamberlain Bean, Washington, DC, Brandon Chad Bungard, Barry Alan Bostrom, Bopp, Coleson and Bostrom, Terre Haute, IN, Jay Alan Sekulow, American Center for Law and Justice, Virginia Beach, VA,
ATTORNEYS FOR DEFENDANTS: Gregory David Stefan, U.S. Attorneys Office, World Trade Center, Norfolk. VA, Susan Lynn Watt, United States Attorneys Office, World Trade Center, Norfolk, VA, Dara Beth Oliphant, U.S. Department of Justice, Trial Attorneys, Tax Division, Washington, DC, Robert Laurence Welsh, U.S. Department of Justice, Washington. DC, Alejandro L. Bertoldo, U.S. Department of Justice, Washington, DC, Candice Marie Turner, U.S. Department of Justice, Washington, DC, Jonathan Dwyer Carroll, U.S. Department of Justice, Washington. DC, Thomas James Sawyer, U.S. Department of Justice, Washington. DC,
ORDER AND OPINION
This matter is before the court on plaintiff Christian Coalition International's objections to the Magistrate's Order Compelling Discovery. After examination of the briefs and record, this court determines that oral argument is unnecessary to decide the pending motion. For the reasons stated below, the findings of the Magistrate Judge are SUSTAINED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff filed a Motion for Entry of Order Compelling Discovery on December 26, 2001. The government also filed a motion to compel. The parties argued their respective motions in a hearing before Magistrate Judge Tommy E. Miller on February 11, 2002. In the hearing, the plaintiff argued for the production of internal IRS documents relating to that agency's decision to deny the plaintiffs tax-exempt status. Judge Miller requested a Vaughn Index from the government, essentially a short description of every contested document. After reviewing the government's index, Judge Miller denied the plaintiffs Motion to Compel in an Opinion and Order filed on May 31, 2002.
II. DISCUSSION
A. Standard of Review
Fed.R.Civ.P. 72(a) authorizes magistrate judges to enter final orders on nondispositive pretrial matters. Rule 72(a) also sets forth the procedure a party must follow to object to a nondispositive pretrial order issued by a magistrate judge. Specifically, a party must file written objections within ten days of entry of the order. If a party files timely objections to a nondispositive order, then the district court reviews the order under a "clearly erroneous or contrary to law" standard. See Fed.R.Civ.P. 72(a). Accordingly, this court reviews Judge Miller's challenged decisions under the deferential "clearly erroneous or contrary to law" standard because no evidence exists that the discovery orders at issue are dispositive. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525(2d Cir. 1990) ("[m]atters concerning discovery generally are considered `nondispositive' of the litigation") (citations omitted)
Rule 72(a) additionally provides that failure to serve timely objections waives the right to do so in the future. See United States v. Schronce, 727 F.2d 91, 94(4th Cir. 1984) (finding that without enforcement of waiver rule, litigant might bypass district court review).
B. Deliberative Process Privilege
Judge Miller denied the plaintiffs Motion to Compel numerous internal IRS documents on the basis that the documents were protected under the deliberative process privilege. The deliberative process privilege protects agency deliberations from public scrutiny in order to encourage "open [and] frank discussion between subordinate and chief concerning administrative action." Environmental Protection Agency v. Mink, 410 U.S. 73, 87(1973); see also, Hennessey v. United States Agency for International Development, 121 F.3d 698, 1997 WL 537998, at *2 (4th Cir. 1997)(unpublished). The privilege permits the government to withhold certain documents whose release would reveal "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." In re: Sealed Case, 116 F.3d 550, 557(D.C. Cir. 1997) (citation omitted). The ultimate issue in evaluating any deliberative process privilege claim is "whether the materials bear on the formulation or exercise of agency policy-oriented judgment. . . [and] whether disclosure would tend to diminish candor within an agency." Virginia Beach v. Dep't of Commerce, 995 F.2d 1247, 1254(4th Cir. 1993) (citation and internal quotation marks omitted).
To invoke the deliberative process privilege successfully, the government must show that in "the context in which the materials are used," the documents are both (1) predecisional and (2) deliberative. Virginia Beach, 995 F.2d at 1253. Predecisional documents are "prepared in order to assist an agency decisionmaker in arriving at his decision." Id. Deliberative materials are documents that reflect "the give-and-take of the consultative process by revealing the manner in which the agency evaluates possible alternative policies or outcomes." Id. Thus, the privilege protects "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.
The plaintiff first asserts that the privilege does not apply because the decisionmaking process itself is the subject of the litigation. The plaintiff cites no Fourth Circuit cases for this proposition, nor does the Fourth Circuit's decision in Virginia Beach mention such an exception. Indeed, the facts in Virginia Beach, where the city alleged internal agency prejudices dictated the agency s decision, suggests that the plaintiffs proposed exception would have been applicable to that case. Because the Fourth Circuit did not recognize any exception to its rule in Virginia Beach, this court holds that the government may properly invoke the privilege.
The plaintiff then argues that Judge Miller's opinion should be overturned because many of the documents do not qualify for that privilege. The plaintiff asserts that several entries in the Index contain an unknown author or an inadequate document description (e.g. "handwritten word notes"). The court finds that the author of the document is irrelevant in this case and a review of the document descriptions in question clearly reveal they contain the personal impressions of agency personnel. See Hunt v. United States Marine Corp., 935 F. Supp. 46, 51-52(D.D.C. 1996) (withholding drafts, recommendations, and subjective memos as predecisional and deliberative). Accordingly, the government has met its burden under the deliberative process privilege for those documents.
The plaintiff next argues the privilege does not apply to undated documents or those containing an unknown year or dated after April 8, 1999, the date of the final determination letter. When considering the dates of documents, it follows that there is a difference between pre-decisional communications, which are privileged, and communications made after the agency decision to explain the decision, which are not privileged. See NLRB v. Sears, Roebuck Co., 421 U.S. 132, 151-53(1975). The government responds that the documents in question are still pre-decisional because the deliberative process did not cease after the initial determination that the plaintiff was not tax-exempt. According to the government, the IRS began a second set of deliberations regarding the tax ramifications of the denial of the plaintiffs tax-exempt status and the deliberative process privilege protects this ongoing decisional process.
Support for the government's position can be found in the Fourth Circuit's decision in Virginia Beach. In that case, the court held the government need not
identify a specific decision in connection with which a memorandum is prepared. Agencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions; and the lower courts should be wary of interfering with this process. . . the line between predecisional documents and postdecisional documents may not always be a bright one.Virginia Beach, 995 F.2d at 1253(quoting NLRB, 421 U.S. at 151-152). This court undertook an independent review of the entire Vaughn Index and agrees with the government that the postdated documents concern an ongoing decisional process and are protected under the deliberative process privilege. Similarly, the undated documents or those containing an unknown year are both predecisional and deliberative.
In sum, an independent review of the Index did not reveal any documents that clearly fall outside the deliberative process privilege. The plaintiff similarly identifies no specific documents that could meet the necessary criteria. Further, the documents apparently do not concern communications made after the agency's decision to explain the decision nor was there disclosure of information to outside sources. See Virginia Beach, 995 F.2d 1253(holding an agency may waive the deliberative process privilege by disclosure to a nongovernmental recipient). Accordingly, Judge Miller's decision upholding the deliberative process privilege is not clearly erroneous.
C. Remaining Objections
The plaintiff next objects to Judge Miller's failure to agree with its objections to the United States' invocation of 26 U.S.C. § 6103 and 26 U.S.C. § 6110 as a privilege protecting the disclosure of certain documents. Section 6103 prohibits the release by the government of "return information" of a taxpayer except as specifically authorized by the statute. Section 6110 provides for public inspection of "written determinations" with redaction of any confidential information. While Judge Miller's written order did not specifically address these issues, he denied the plaintiffs motion to compel generally. Finally, the plaintiff objects to the number of interrogatories requested by the government. The court carefully reviewed the file and cannot find any of these rulings to be clearly erroneous.
III. CONCLUSION
For the reasons set forth above, the findings of the Magistrate Judge are SUSTAINED.
The Clerk is REQUESTED to send copies of this Order to all counsel of record.