Am. Oversight v. U.S. Dep't of the Treasury, Civil Action No. 17-2078 (RBW)

474 F.Supp.3d 251

AMERICAN OVERSIGHT, Plaintiff,

v. UNITED STATES DEPARTMENT OF THE TREASURY, Defendant,andCommittee on Ways and Means of the United States House of Representatives Intervenor-Defendant.

Civil Action No. 17-2078 (RBW)

United States District Court, District of Columbia.

Signed July 22, 2020

Elizabeth France, John E. Bies, Katherine Marie Anthony, Sara Kaiser Creighton, American Oversight, Washington, DC, for Plaintiff.

Rebecca Michelle Kopplin, United States Department of Justice, Washington, DC, for Defendant.

Brooks McKinly Hanner, Todd Barry Tatelman, Office of General Counsel for U.S. House of Representatives, Washington, DC, for Intervenor-Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, American Oversight, brings this civil action against the defendant, the United States Department of the Treasury ("Treasury"), and the intervenor-defendant, the Committee on Ways and Means of the United States House of Representatives (the "Committee"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2018), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 – 2202 (2018). See Complaint ("Compl.") at 1; Min. Order (June 22, 2018). Currently pending before the Court are (1) the Defendant's Motion for Summary Judgment ("Def.’s Mot.") and (2) and the Plaintiff's Cross-Motion for Summary Judgment ("Pl.’s Mot."). Upon careful consideration of the parties’ submissions,¹ the Court concludes for the following reasons that it must grant Treasury's motion for summary judgment and deny the plaintiff's cross-motion for summary judgment.

I. BACKGROUND

According to Treasury,

[b]eginning in April 2017, Treasury officials and staff provided technical and other support to the "Big Six," which was comprised of Treasury Secretary Steven Mnuchin, National Economic Council Director Gary Cohn, Senator Majority Leader Mitch McConnell, Senate Finance Committee Chair Orrin Hatch, Speaker of the House Paul Ryan, and House Ways and Means Committee Chairman Kevin Brady. The mandate of the Big Six was to develop a unified framework to achieve pro-growth, fiscally-responsible tax reform. To help facilitate the work of the Big Six, a group of officials from the White House, Treasury, and key Republican Senate and House staffers convened what was informally known a[s] the "Tax Reform Working Group," on which ... Treasury officials represented Secretary Mnuchin's interests. The Tax Reform Working Group regularly met during the period of April [to] November 2017, and shared information related to efforts by the parties to draft and ultimately enact legislation to reform the tax code.

Kowalski Decl. ¶¶ 8–9. Individuals at Treasury communicated with members of the Tax Reform Working Group about "legislative and administrative options for tax reform, communications strategy related to tax reform, and proposed work plans and agendas identifying priorities and informing future tasks and activities of the [Tax Reform] Working Group." Kowalski Decl. ¶ 10. This process "culminated in the release of" "a comprehensive tax reform proposal [by the ‘Big Six’,]" on September 27, 2017, "entitled the ‘Unified Framework for Fixing Our Broken Tax Code’ [(the "Unified Framework")]." Id.

After the Unified Framework was released, Treasury contends that "communications between the Tax Reform Working Group and discrete communications between Treasury and Congress shifted towards the technical aspects of draft legislation, such as the details of legislative options and language[,]" and Treasury "adjusted and refined its positions on specific legislative proposals, as well as its decision[ ]making regarding Congressional outreach and potential administrative initiatives." Id. ¶ 12. Finally, as Congress approached a vote on the Tax Cuts and Jobs Act, which was signed into law by President Trump on December 22, 2017, Treasury represents that it "began to spend more time discussing the legislation and its potential impact with Members of Congress and their staff, in an effort to inform these individuals about Treasury's policy priorities and shape the legislation in a manner that aligned with the goals of the Secretary and the Administration."

Id. ¶ 13. Treasury asserts that its "engagement with Congress also helped inform future administrative actions needed to implement tax reform legislation, including substantial rulemaking activities stemming from the [Tax Cuts and Jobs Act][,]" and "helped inform the manner in which [Treasury] officials briefed the Secretary regarding legislative developments[,]" such that the Secretary could then "inform[ ] and advise[ ] other stakeholders, including the President and other [White House] officials." Id. ¶ 16.

The plaintiff is "a nonpartisan non-profit ... organization committed to the promotion of transparency in government[.]" Compl. ¶ 6. On August 7, 2017, the plaintiff submitted its FOIA request to Treasury and the Office of Management and Budget ("OMB"), see Def.’s Facts ¶ 1; Pl.’s Facts ¶ 1, seeking "[a]ll communications, calendar invitations/entries, meeting notices, meeting agendas, informational material, draft legislation, talking points, or other materials relating to potential legislation regarding the federal tax code exchanged between or including any members of Congress or congressional staff and [enumerated Treasury officials and anyone acting on behalf of any of these individuals (such as administrative assistants),]" Def.’s Facts ¶ 2; Pl.’s Facts ¶ 2, "from January 20, 2017, to the date that the search was conducted," Pl.’s Facts ¶ 3; see Def.’s Facts ¶ 3.

On October 5, 2017, the plaintiff filed this suit against Treasury and the OMB. See Compl. at 1. The Committee then moved to intervene as a defendant to assert the affirmative defense that its documents are congressional records beyond the scope of the FOIA, see Motion for Leave to Intervene of the Committee on Ways and Means of the U.S. House of Representatives, and the Court granted the Committee's motion, see Min. Order (June 22, 2018), but "[the plaintiff] elected not to challenge [the] withholding of records that both [the] ... [Committee] and Treasury contended belonged to Congress[,]" Pl.’s Mem. at 2, n.1.

The OMB completed its production on February 15, 2019. See id. at 2. The plaintiff "elected not to challenge [the OMB's] search or withholdings," and on April 4, 2019, the OMB was dismissed from this case. Id. at 2; see Joint Stipulation of Voluntary Dismissal of Defendant Office of Management and Budget at 1.

Treasury started making rolling productions of responsive documents to the plaintiff in January 2018. See Joint Status Report (Dec. 14, 2017). By June 2019, Treasury completed its productions, with the exception of "sixteen documents that contain legends asserting control by either the [ ] Committee ... or the Joint Committee on Taxation[,]" which Treasury withheld as agency records not subject to disclosure, pursuant to the Court's December 18, 2018 Order.² Joint Status Report at 1–2 (Mar. 15, 2019); see Order at 7 (Dec. 18, 2018), ECF No. 31. Treasury thereafter filed its motion for summary judgment, asserting that it had properly withheld material from its productions pursuant to FOIA Exemption 5, see Def.’s Mot. at 1, and the plaintiff filed a cross-motion for summary judgment, asserting that Treasury's withholdings pursuant to FOIA Exemption 5 were improper, see Pl.’s Mot. at 1. These motions are the subjects of this Memorandum Opinion.

II. STANDARD OF REVIEW

The Court must grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party, however, cannot rely on "mere allegations or denials," Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ), but must instead present specific facts "such that a reasonable [factfinder] could return a verdict for the non[-]moving party," Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23 (D.C. Cir. 2013) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). Thus, "[c]onclusory allegations unsupported by factual data will not create a triable issue of fact." Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 908 (D.C. Cir. 1999) (Garland, J., concurring) (alteration in original) (quoting Exxon Corp. v. Fed. Trade Comm'n, 663 F.2d 120, 126–27 (D.C. Cir. 1980) ). If the Court concludes that "the non[-]moving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thus, when "ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Shays v. Fed. Election Comm'n, 424 F. Supp. 2d 100, 109 (D.D.C. 2006).

"FOIA cases are typically resolved on motions for summary judgment." Ortiz v. U.S. Dep't of Justice, 67 F. Supp. 3d 109, 116 (D.D.C. 2014) ; see also Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The "FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the...