UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NATIONAL STUDENT LEGAL DEFENSE NETWORK, Plaintiff, Civil Action No. 21-1923 (BAH)
Judge Beryl A. Howell v.
UNITED STATES DEPARTMENT OF EDUCATION,
Defendant.
MEMORANDUM OPINION
Plaintiff National Student Legal Defense Network challenges the United States Department
of Education’s (“ED”) withholding, in response to plaintiff’s request, pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, of eight unique email communications in email chains
between an ED attorney and an attorney for the Social Security Administration (“SSA”), occurring
between September 13 and 23, 2019, which communications have been largely redacted on
nineteen disclosed pages. ED withheld release of the disputed emails under FOIA Exemption 5,
5 U.S.C. § 552(b)(5), asserting that these emails are subject to the attorney work product and
deliberative process privileges.
The parties have now cross-moved for summary judgment. Def.’s Mot. Summ. J., ECF
No. 19 (“Def.’s Mot.”); Pl.’s Cross-Mot. Summ. J. (“Pl.’s Cross-Mot.”), ECF No. 23. Following
in camera review of the disputed withheld records, for the reasons set forth below, summary
judgment is granted to ED and denied to plaintiff.
I. BACKGROUND 1 The background underlying plaintiff's FOIA request is described below, followed by a
review of plaintiff’s FOIA request and initiation of the instant lawsuit.
A. Gainful Employment Rule
The Higher Education Act of 1965, as amended, (“HEA”) 20 U.S.C. § 1001, et seq.,
authorizes the federal government to deliver financial aid to students at post-secondary institutions
of higher learning. 20 U.S.C. § 1070. This educational loan program sponsored by the federal
government “provide[s] more than $150 billion in new federal aid” to students at post-secondary
schools every year, including “private for-profit institutions, public institutions, and private
nonprofit institutions.” Ass’n of Priv. Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 435 (D.C.
Cir. 2012) (citation omitted). While these students are expected eventually to repay their debt to
the federal government, the post-secondary institutions attended by recipient students receive the
tuition payments up front, so Congress enacted a series of statutory requirements to discourage
these institutions from taking students’—and thus the taxpayers’—money without providing those
students with a quality education. Id.
One such protection established by Congress is the “gainful employment” rule, which
limits institutions eligible to receive federal loans to those schools that “provide[] an eligible
program of training to prepare students for gainful employment in a recognized occupation[.]” 20
U.S.C. § 1002(b)(1)(A)(i), (c)(1)(A). No definition of “gainful employment” is provided in the
statute, but the authority to “make, promulgate, issue, rescind, and amend rules and regulations
governing” Title IV programs is vested with ED’s Secretary, id. § 1221e–3, including the authority
to define, via regulation, what constitutes “gainful employment,” Ass’n of Priv. Sector Colls. &
Univs. v. Duncan, 110 F. Supp. 3d 176, 182 (D.D.C. 2015).
2 In 2014, ED implemented regulations for the gainful employment rule, setting criteria to
determine the eligibility of institutions to participate in federal student aid programs. See 79 Fed.
Reg. 16,426, 16,433 (Mar. 25, 2014); accord Maryland v. Dep’t of Educ., 474 F. Supp. 3d 13, 19,
21–22 (D.D.C. 2020) (Jackson, K.B., J.), vacated and rev’d on other grounds, 2020 WL 7868112,
at *1 (D.C. Cir. Dec. 22, 2020). As relevant here, the regulations required ED to calculate and
publish a “debt-to-earnings rate” for participating programs, with that rate used to designate each
as “passing,” “in the zone,” or “failing.” Maryland, 474 F. Supp. 3d at 23 (citing 34 C.F.R. §§
668.403(b), 668.403(c) (2019)). Under these regulations, any program receiving a failing debt-to-
earnings rate in two of any three consecutive years or a combination of “in the zone” and “failing”
for four consecutive years, would be deemed ineligible. Id. at 23–24 (citing 34 C.F.R. §§
668.403(c)(4)(i), (ii) (2019)).
Pursuant to a Memorandum of Understanding (“MOU”), the SSA agreed to provide ED
with the aggregate earnings data needed for the pertinent calculations of the debt-to-earnings rates.
Am. Fed’n of Tchrs. v. DeVos, 484 F. Supp. 3d 731, 746 (N.D. Cal. 2020). On May 24, 2018,
however, the MOU between SSA and ED expired and was not renewed, Defendant’s Statement of
Material Facts (“Def.’s SMF”) ¶ 9, ECF No. 19-2; Plaintiff’s Response to Defendant’s Statement
of Material Facts (“Pl.’s SMF”) ¶ 9, ECF No. 21-1, resulting in ED no longer receiving from SSA
the earnings data necessary to implement the gainful employment regulations, see Am. Fed’n of
Tchrs. v. DeVos, 484 F. Supp. 3d at 746. Plaintiff asserts that prior to the MOU’s expiration, ED
had “asked the SSA to renew the MOU, but SSA did not do so.” Pl.’s Counterstatement of
Material Facts (“CSMF”) ¶ 4, ECF No. 21-1 (citation omitted).
On July 1, 2019, ED rescinded the gainful employment regulations, effective on July 1,
2020. 84 Fed. Reg. 31,392.
3 B. Plaintiff’s FOIA Request
On May 6, 2020, plaintiff submitted to ED a FOIA request seeking the following
information from after January 1, 2017:
A copy of every communication to and from the . . . []SSA[] or any other federal agency relating to the calculation of debt-to-earnings rates, including any communication to or form the SSA requesting data or information to be used in order to calculate debt-to-earnings rates. Any communication between [ED] and SSA related to Agreement No. 10012, or requesting or providing information to be provided pursuant to Agreement No. 10012. Any communication between [ED] and SSA related to information or data pertaining to the Gainful Employment regulations. Any emails or other documents relating to the expiration of Agreement No. 10012.
Compl. ¶¶ 12–13.
Less than three months later, on July 16, 2021, plaintiff filed the instant lawsuit, alleging
ED: (1) failed to conduct an adequate search for responsive records, and (2) wrongfully withheld
non-exempt records requested by plaintiff. Compl. ¶¶ 21–33. In response to plaintiff’s FOIA
request, ED produced, on October 15, 2021, the disputed 19 pages of redacted emails and, on
October 29, 2021, 116 pages of redacted communications, Def.’s SMF ¶¶ 13–14, which production
is not disputed, Pl.’s SMF ¶ 14. Over the course of the ensuing litigation, ED has produced three
Vaughn indices explaining the agency’s evolving reasoning for withholding the redacted emails,
with the final revised Vaughn index produced on September 12, 2022. Pl.’s CSMF ¶¶ 30–31; see
id. ¶¶ 14–16 (describing withheld disputed records in first Vaughn index, produced on January 25,
2022, as exempt under the attorney work product privilege because the communications were
made, according to defendant, “in contemplation of possible future litigation regarding gainful
employment and the MOU between ED and SSA, which share a common interest in this matter,”
and the deliberative process privilege because Steven Finley, a General Attorney in the Division
4 of Postsecondary Education in ED’s Office of the General Counsel, sought “potential answers to
substantive questions raised regarding the scope of the MOU between SSA and [ED]”); id. ¶¶ 23,
27 (describing withheld disputed records in revised Vaughn index, produced on May 6, 2022, as
protected by attorney-client privilege, but withdrawing assertion of such protection as to certain
withheld information and clarifying that ED was “not, at this time, asserting a common interest
privilege” with the SSA).
C. ED’s Explanations for Withholding the Disputed Emails
In support of the challenged withholdings, Steven Finley explains that the disputed emails
consist of his communications with SSA officials. Def.’s SMF ¶ 17; Def.’s Mot., Ex. 3, Decl. of
Steven Z. Finley (“Finley Decl.”) ¶¶ 1, 7–10, ECF No. 19-5. On September 13, 2019, Finley
initiated communications by sending an email “to Ruthie Bright and Rona Demb, employees at
SSA” to request “a point of contact within SSA’s General Counsel’s office” and inform them that
he sought certain “information regarding SSA’s decision not to renew the . . . MOU with [ED].”
Finley Decl. ¶ 8. “The September 20 and 23, 2019 emails were exchanged between [Finley] and
Terri Daniel, an attorney in SSA’s Office of General Law,” in which Finley sought “information
related to SSA’s decision not to renew the . . . MOU with the Department, and Ms. Daniel
described her understanding of the SSA’s position.” Id. ¶ 9. According to Finley, these
communications reflect his “attempt to obtain documentary support regarding SSA’s decision not
to renew the . . . MOU,” so that he could “obtain specific information that would allow [him] to
better formulate [his] recommendations and analysis regarding the Department’s legal strategy for
the gainful employment litigation,” id. ¶ 10, since ED “anticipated that the reason for rescission of
the regulations would likely arise in future litigation against the Department,” Def.’s SMF ¶ 23.
Indeed, in 2020—in the year following the exchange of disputed emails—complaints were filed
5 challenging the legality of the rescission of the gainful employment regulations. Def.’s SMF ¶ 24
(citing Am. Fed. of Teachers v. Devos and California v. Devos, 484 F. Supp. 3d 731 (N.D. Cal.
2020), and Pennsylvania v. Devos, No. 20-CV-1719 (ACR) (D.D.C. 2020)). 1
Finley further clarified that he was also seeking assistance from SSA in preparation for
pending litigation concerning the gainful employment regulations, as outlined in a September 20,
2019 email from Finley to an SSA attorney, Terri Daniel. See Supplemental Declaration of Steve
Finley (“Finley Suppl. Decl.”) ¶ 6, ECF No. 28-2; see also Def.’s Reply, Ex. 1, Supplemental
Declaration of Jill Siegelbaum (“Siegelbaum Suppl. Decl.”), Ex. A., Redacted Finley
Communications, ECF No. 28-1. In particular, Finley quotes, in the Supplemental Finley
Declaration, from his September 20, 2019 email to Daniel stating:
Education still has some litigation involving the [gainful employment] regulations, even though a new regulation was recently published that rescinds them. Education has filed a motion to dismiss the older [gainful employment] litigation as moot. Part of the objections from the plaintiffs is that ED has never provided any evidence to support its statements that SSA declined to renew the MOU. Since ED does not have anything from SSA on that point, I am looking for . . . . I am not asking for anyone to create anything for ED, but I want to see if there is anything from SSA that DOJ could use in responding to that point raised by the plaintiffs.
Finley Suppl. Decl. (quoting Redacted Finley Communications at 10). Finley explains that his
email references litigation in Maryland v. Department of Education, 474 F. Supp. 3d 13 (D.D.C.
2020), challenging ED’s delay in implementing the gainful employment regulations that was
pending at the time. Id. ¶ 6. 2
1 American Federation of Teachers v. Devos has since been recaptioned Baltezar v. Cardona, No. 5:20-CV- 455 (N.D. Cal.). 2 Finley explained in his original declaration that these emails were also “intended to help establish a robust administrative record for the rescission.” Finley Decl. ¶ 10. In his supplemental declaration, however, Finley clarified that establishing a robust administrative record “was not the primary reason for my outreach to SSA,” and his use of the word “establish” “was inaccurate because the rescission rule had already been issued,” and he “should have more precisely stated that [he] . . . sought information that might bolster the Department’s statements in the rescission rule that SSA declined to renew the MOU, to defend against any future challenge to the rescission rule that raised issues similar to those raised by the Maryland plaintiffs.” Finley Suppl. Decl. ¶ 7.
6 ED also justifies withholding on deliberative process privilege grounds, Def.’s SMF ¶ 25,
asserting that release of the disputed emails would “cause a significant chilling effect on candid
inquiries and analyses necessary to develop recommendations that allow the Department to
determine what actions to take in order to minimize potential litigation risks,” id. ¶ 26 (quoting
Def.’s Mot., Ex. 1, Declaration of Jill Siegelbaum (“Siegelbaum Decl.”) at Ex. D, Vaughn Index,
ECF No. 19-3) (alteration in original)). Finley echoes these concerns, explaining that release
would have “a significant chilling effect both on intra-agency clients and attorneys whose candor
is necessary to develop an effective legal strategy, and on federal agency employees’ ability to
engage in frank discussions during the deliberative process.” Finley Decl. ¶ 11.
The parties have cross-moved for summary judgement on whether ED’s redactions on the
19 pages of disputed emails are properly withheld under Exemption 5’s protections of attorney
work product and deliberative process privilege. See Pl.’s Opp’n to Def.’s Mot. Summ. J. (“Pl.’s
Opp’n”) at 2, ECF No. 21; Def.’s Opp’n Pl.’s Cross-Mot. Summ. J. & Reply Supp. Def.’s Mot.
Summ. J. (“Def.’s Reply”) at 6, ECF No. 28; Pl.’s Reply Supp. Cross-Mot. Summ. J. (“Pl.’s
Reply”) at 1–3, ECF No. 32. With briefing and in camera review of the disputed emails complete,
the parties’ cross-motions are now ripe for resolution. 3
II. LEGAL STANDARD Under Federal Rule of Civil Procedure 56, “[a] party is entitled to summary judgment only
if there is no genuine issue of material fact and judgment in the movant’s favor is proper as a matter
of law.” Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006));
3 ED was directed to produce for in camera review the complete set of disputed emails, see Minute Order (June 16, 2023), with which order ED timely complied. See Def.’s Notice of Submission of Documents For In Camera Review, ECF No. 35; Def.’s Ex Parte Filing of Documents for In Camera Review, ECF No. 36.
7 see also FED. R. CIV. P. 56(a). In FOIA cases, “courts must grant summary judgment for an agency
if its affidavit: (1) describes the justifications for nondisclosure with ‘reasonably specific detail’;
and (2) is not substantially called into question by contrary record evidence or evidence of agency
bad faith.” Schaerr v. U.S. Dep't of Just., 69 F.4th 924, 929 (D.C. Cir. 2023) (quoting Wolf v.
C.I.A., 473 F.3d 370, 374 (D.C. Cir. 2007)). Most FOIA cases “can be resolved on summary
judgment.” Brayton v. Off. of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
“The fundamental principle animating FOIA is public access to government documents.”
Waterman v. Internal Revenue Serv., 61 F.4th 152, 156 (D.C. Cir. 2023) (quoting Valencia-Lucena
v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)) accord DiBacco v. U.S. Army (“DiBacco
I”), 795 F.3d 178, 183 (D.C. Cir. 2015). Agencies are therefore statutorily mandated to “make . . .
records promptly available to any person” who submits a request that “reasonably describes such
records” and “is made in accordance with [the agency’s] published rules.” 5 U.S.C.
§ 552(a)(3)(A). “Congress, however, did not ‘pursue transparency at all costs[;]’ [r]ather, it
recognized that ‘legitimate governmental and private interests could be harmed by release of
certain types of information.’” Citizens for Resp. & Ethics in Washington v. U.S. Dep't of Just.
(“CREW II”), 45 F.4th 963, 967 (D.C. Cir. 2022) (first quoting Hall & Assocs. v. EPA, 956 F.3d
621, 624 (D.C. Cir. 2020); and then quoting AquAlliance v. U.S. Bureau of Reclamation, 856 F.3d
101, 102 (D.C. Cir. 2017)). To balance those competing interests, “FOIA exempts nine categories
of documents from ‘the government's otherwise broad duty of disclosure.’” Waterman, 61 F.4th at
156 (quoting AquAlliance, 856 F.3d at 102). “[T]hese limited exemptions do not obscure the basic
policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v.
Rose, 425 U.S. 352, 361 (1976).
8 FOIA authorizes federal courts “to enjoin the agency from withholding agency records and
to order the production of any agency records improperly withheld from the complainant.” 5
U.S.C. § 552(a)(4)(B). When an agency invokes an exemption to disclosure, district courts must
“determine de novo whether non-disclosure was permissible.” Elec. Priv. Info. Ctr. v. U.S. Dep’t
of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). The statute “places the burden ‘on the
agency to sustain its action,’ and the agency therefore bears the burden of proving that it has not
‘improperly’ withheld the requested records.” Citizens for Resp. & Ethics in Washington v. U.S.
Dep’t of Justice (“CREW I”), 922 F.3d 480, 487 (D.C. Cir. 2019) (first quoting 5 U.S.C. §
552(a)(4)(B); and then quoting U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)).
This burden does not shift even when the requester files a cross-motion for summary judgment
because the agency ultimately “bears the burden to establish the applicability of a claimed
exemption to any records or portions of records it seeks to withhold,” Am. Immigr. Laws. Ass’n v.
Exec. Off. for Immigr. Rev., 830 F.3d 667, 673 (D.C. Cir. 2016), while “[t]he burden upon the
requester is merely ‘to establish the absence of material factual issues before a summary
disposition of the case could permissibly occur,’” Pub. Citizen Health Rsch. Grp. v. U.S. Food &
Drug Admin., 185 F.3d 898, 904–05 (D.C. Cir. 1999) (quoting Nat’l Ass’n of Gov’t Emps. v.
Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).
The agency may sustain “this burden ‘by submitting a Vaughn index, along with affidavits
from agency employees that describe the justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically falls within the claimed exemption, and
are not controverted by either contrary evidence in the record nor by evidence of agency bad
faith.’” Waterman, 61 F.4th at 158 (quoting Am. Immigr. Laws. Ass’n, 830 F.3d at 673); see also
Poitras v. Dep't of Homeland Sec., 303 F. Supp. 3d 136, 150 (D.D.C. 2018) (“An agency may
9 carry its burden of showing an exemption was properly invoked by submitting sufficiently detailed
affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that
the government has analyzed carefully any material withheld and provided sufficient information
as to the applicability of an exemption to enable the adversary system to operate.”). “‘Ultimately,
an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” Jud. Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (per
curiam) (quoting ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)).
III. DISCUSSION ED maintains that the disputed emails were properly withheld under FOIA Exemption 5,
pursuant to the work product doctrine and the deliberative process privilege. Def.’s Mot. at 5–10.
In the agency’s view, the work product doctrine protects the disputed emails since those
communications between counsel from different agencies were made for the purpose of obtaining
information to prepare for pending and anticipated litigation involving the gainful employment
regulations. Id. at 7. As such, ED further claims that the disputed emails are protected by the
deliberative process privilege because they were part of ED’s “pre-decisional . . . fact gathering
[efforts] to assist the Department in arriving at a decision concerning its litigation strategy on how
to respond to anticipated litigation about the rescission of the gainful employment rule,” id. at 9,
with both justifications supported by sufficient explanations and declarations, see Finley Decl.;
Finley Suppl. Decl.; Siegelbaum Decl.; Siegelbaum Suppl. Decl., and Vaughn indices.
ED is correct that the eight disputed emails amount to attorney work product since the
agency has adequately demonstrated that these communications were made to gather information
to help the agency prepare for pending and anticipated litigation concerning the gainful
10 employment regulations, and therefore these emails are largely protected from disclosure under
FOIA Exemption 5. 4
A. FOIA Exemption 5 and the Attorney Work Product Doctrine
FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums
or letters that 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). This exemption “incorporates the privileges that the Government
may claim when litigating against a private party, including the governmental attorney-client
and attorney work product privileges, . . . and the deliberative process privilege.” Abtew v. U.S.
Dep't of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015); see also Nat’l Ass’n of Crim. Def.
Laws. v. U.S. Dep’t of Just. Exec. Off. for U.S. Att’ys (“NACDL”), 844 F.3d 246, 249 (D.C. Cir.
2016).
For attorney work product protection to apply, the materials must be prepared by an
attorney in anticipation of litigation. See NACDL, 844 F.3d at 250 (citing Hickman v. Taylor, 329
U.S. 495, 510–12 (1947)); see also Jud. Watch, Inc. v. U.S. Dep’t of Just., 391 F. Supp. 3d 43, 50
(D.D.C. 2019) (explaining that the attorney work-product privilege is “intended to protect lawyers
and their agents who are assembling facts and law in anticipation of litigation”) (citing Hickman,
329 U.S. at 508). The D.C. Circuit has “required a case-specific determination that a particular
document in fact was prepared in anticipation of litigation before applying the privilege to
government records.” NACDL, 844 F.3d at 251. The inquiry is “a ‘because of’ test, asking
whether, in light of the nature of the document and the factual situation in the particular case, the
document can fairly be said to have been prepared because of the prospect of litigation.’” Id.
(quoting United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010)); Jud. Watch, Inc. v.
4 In light of this holding, ED’s alternative argument for withholding under the deliberative process privilege need not be evaluated.
11 Dep't of Just., 432 F.3d 366, 371 (D.C. Cir. 2005) (cleaned up) (“[A]ny part of a document
prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and
the like, is protected by the work product doctrine and falls under [E]xemption 5.”); Leopold v.
U.S. Dep’t of Just., 487 F. Supp. 3d 1, 10 (D.D.C. 2020) (explaining that the attorney work product
privilege “protects ‘factual materials prepared in anticipation of litigation, as well as mental
impressions, conclusions, opinions, and legal theories’”) (quoting Heggestad v. U.S. Dep’t of Just.,
182 F. Supp. 2d 1, 8 (D.D.C. 2000)). Importantly, “[f]or that standard to be met, the attorney who
created the document must have ‘had a subjective belief that litigation was a real possibility,’ and
that subjective belief must have been ‘objectively reasonable.’” NACDL, 844 F.3d at 251 (quoting
In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998)).
B. The Disputed Emails Are Protected Attorney Work Product
ED argues that the attorney work product doctrine protects the redacted portions of the
disputed emails because these communications were initiated and engaged in by Finley, when
acting in his capacity as an ED attorney to “attempt to obtain documentary support regarding
SSA’s decision not to renew the . . . MOU,” which information was relevant to inform ED’s legal
strategy concerning pending and anticipated litigation regarding the gainful employment
regulations. Def.’s Mot. at 7 (quoting Def.’s SMF ¶ 21). As ED points out, the agency not only
believed that litigation concerning the gainful employment regulations was possible, but that this
belief was objectively reasonable, considering litigation over delays in implementing the gainful
employment regulations was already pending in the Maryland lawsuit at the time of the disputed
email communications and, in fact, the anticipated litigation over rescission of those regulations
was eventually filed. Id.
12 ED is right. First, the disputed emails contain Finley’s “mental impressions, conclusions,
[and] opinions” related to pending and potential litigation concerning the gainful employment
regulations. Leopold, 487 F. Supp. 3d at 10. As his declaration explains, Finley “attempt[ed] to
obtain documentary support regarding SSA’s decision not to renew the [ ] MOU,” so that he could
“obtain specific information that would allow [him] to better formulate [his] recommendations and
analysis regarding [ED’s] legal strategy for gainful employment litigation.” Finley Decl. ¶ 10.
Indeed, his emails with an attorney in the SSA’s Office of General Counsel, in September of 2019,
sought “information related to SSA’s decision not to renew the . . . MOU with” ED, “provided
[Daniel] with contextual information that [he] deemed pertinent and relevant regarding the
underlying gainful employment litigation[,] and asked follow-up questions to better understand
her responses.” Id. ¶ 9. Meanwhile, the attorney for SSA’s Office of General Counsel responded
to Finley with “contextual information that [he] deemed pertinent and relevant regarding the
underlying gainful employment litigation.” Id. As noted above, the MOU was certainly relevant,
if not critical, to implementation of the gainful employment regulations by furnishing ED with
graduate earning data to support the regulations. See Am. Fed’n of Tchrs. v. DeVos, 484 F. Supp.
3d at 746. Finley was also gathering information to respond to the argument asserted in Maryland
v. Department of Education, a case pending at the time of the disputed emails challenging ED’s
delay in implementing the gainful employment regulations, that ED had failed to provide evidence
that SSA declined to renew the MOU. See Finley Suppl. Decl. ¶ 6. Moreover, the fact that Finley
initiated the email communications with the SSA’s General Counsel’s office for the purpose of
advising ED on its legal strategy concerning the gainful employment regulations, confirms that the
disputed emails were made with the “subjective belief that litigation was a real possibility.”
NACDL, 844 F.3d at 251 (quoting In re Sealed Case, 146 F.3d at 884). Finley’s declarations thus
13 provide ample support that the disputed emails were made with the purpose of gathering
information to help ED in the Maryland litigation and other potential litigation concerning the
gainful employment regulations.
Second, ED’s belief about litigation concerning the gainful employment regulations was
objectively reasonable. For one thing, as already noted, Finley reached out to SSA to prepare for
the then-pending Maryland litigation. Finley Supp. Decl. ¶ 6. Moreover, the regulations had been
rescinded by the time Finley had initiated the email communications with SSA, and thus eventual
litigation could be reasonably anticipated, as demonstrated by the subsequent filing of three cases
challenging the rescission of the gainful employment regulations. See Def.’s SMF ¶ 24. 5
Plaintiff nonetheless maintains that the disputed emails are not protected attorney work
product for two reasons. First, plaintiff says “that communications from SSA employees are not
[ED’s] work product” because the “SSA is not a party in this case and Mr. Finley is not its
attorney[.]” Pl.’s Cross-Mem. at 13. Second, plaintiff says that ED’s assertion of work product
privilege “cannot be reconciled with Mr. Finley’s representation that ‘these emails were intended
to help establish a robust administrative record for the rescission,’” id. at 13 (quoting Finley Decl.
¶ 10), and thus the emails “must be turned over to plaintiffs in the Administrative Procedure Act
[“APA”] case Mr. Finley was seemingly anticipating,” id. (emphasis omitted). Neither argument
withstands scrutiny.
5 Plaintiff contests ED’s reliance on the three eventual lawsuits because those lawsuits had not been filed at the time of the disputed emails communications, proffering that Finley could not have reasonably anticipated that his communications with SSA would become relevant to future litigation not yet filed. Pl.’s Opp’n at 9. Whether legal challenges had been filed when Finley reached out to SSA is not the measure of the scope of the work product doctrine, however. So long as ED’s “subjective belief that litigation was a real possibility” was “objectively reasonable,” NACDL, 844 F.3d at 251 (quoting In re Sealed Case, 146 F.3d at 884), attorney work product protection may apply. The eventual filing of three separate lawsuits challenging the rescission of the gainful employment regulations makes clear that ED’s assessment about the probability of litigation was an objectively reasonable one.
14 To start, plaintiff’s claim that communications with non-parties obviates work product
protections mistakenly construes the doctrine too narrowly. The D.C. Circuit has made clear that
“disclosure to a third party does not waive the privilege unless such disclosure, under the
circumstances, is inconsistent with the maintenance of secrecy from the disclosing party’s
adversary,” and “waiver would occur . . . only if the disclosure substantially increases the
possibility of an opposing party obtaining the information.” United States v. Am. Tel. & Tel. Co.,
642 F.2d 1285, 1299 (D.C. Cir. 1980) (quotation marks omitted); accord Deloitte LLP, 610 F.3d
at 139 (“While voluntary disclosure waives the attorney-client privilege, it does not necessarily
waive work-product protection.”); see also Am. Oversight v. U.S. Dep’t of Just., 45 F.4th 579, 590
(2d Cir. 2022) (explaining that the work product doctrine, codified in Federal Rule of Civil
Procedure 26(b)(3)(A), “sweeps broadly, such that documents memorializing ‘[n]ot only an
attorney’s mental impressions and opinions about a case but also the results of the attorney’s
factual investigations in anticipation of the case may constitute attorney work product’”) (quoting
N.Y. Times Co. v. U.S. Dep’t of Just., 939 F.3d 479, 489 (2d Cir. 2019)). Plaintiff provides no
reason why disclosure to the SSA of some limited contextual information for Finley’s request “is
inconsistent with the maintenance of secrecy from the disclosing party’s adversary,” Am. Tel. &
Tel. Co., 642 F.2d at 1299 (citation omitted), considering that ED and SSA had engaged in joint
conduct, pursuant to the MOU, to implement the gainful employment regulations that were the
subject of litigation challenge. Furthermore, when initiating the email communication with the
SSA’s Office of General Counsel, Finley “informed them that [he] was seeking information
regarding SSA’s decision not to renew the 2013 MOU with” ED, Finley Decl. ¶¶ 8–9; see also
Vaughn index. Far from being inconsistent with maintaining the confidentiality of attorney work
product, these disputed emails between two agencies’ counsel instead evince ED’s efforts to
15 prepare for pending and anticipated litigation concerning the gainful employment regulations.
Merely because SSA is a non-party simply does not preclude ED’s assertions of work product
protection over the withheld emails. 6
Plaintiff highlights Finley’s representation in his declaration that the disputed emails were
also “intended to help establish a robust administrative record for the rescission,” Finley Decl.
¶ 10, but this a misfire. As noted, see supra n.2, Finley clarified in his supplemental declaration
that establishing a robust administrative record “was not the primary reason for my outreach to
SSA,” and his use of the word “establish” “was inaccurate because the rescission rule had already
been issued,” and he “should have more precisely stated that [his] September 2019 emails . . .
sought information that might bolster the Department’s statements in the rescission rule that SSA
declined to renew the MOU, to defend against any future challenge to the rescission rule that raised
issues similar to those raised by the Maryland plaintiffs.” Finley Suppl. Decl. ¶ 7. In camera
review confirms that the disputed emails were expressly made to gather information from SSA
about the MOU termination in preparation for ED’s litigation.
C. No Waiver of Attorney Work Product Protection
Plaintiff contends that even if work product protection covers the disputed emails, ED has
waived such protection through inconsistent conduct in this litigation and in other litigation. As
support, plaintiff correctly points out, Pl.’s Reply at 8–12, that courts “have not looked favorably
on litigants that, having asserted that documents must not be disclosed on one basis, mutate their
arguments at the last moment to avoid an adverse ruling requiring production.” Mischler v.
Novagraaf Grp. BV, No. 118-CV-2002 (TJK/GMH), 2019 WL 6135447, at *6 (D.D.C. Nov. 19,
6 For the same reasons, plaintiff’s argument that Finley’s communications waive ED’s work product protection over the disputed emails because defendant lacks common interest with the SSA also fails. See Pl.’s Cross-Mot. at 14.
16 2019); see also Neuberger Berman Real Est. Income Fund, Inc. v. Lola Brown Tr. No. 1B, 230
F.R.D. 398, 418 (D. Md. 2005) (“Defendants’ deliberate withdrawal of the privilege assertion from
privilege logs notably in lieu of a response to plaintiff's counsel’s objections to the insufficiency
of the stated basis demonstrates a forfeiture of the privilege.”). Yet, the so-called “waiver ‘rule’”
identified by plaintiff, Pl.’s Reply at 10, is not a game of gotcha requiring waiver when an agency
clarifies the basis for withholding or explanations for assertions of privilege. Under these
circumstances, only when the party’s conduct reflects their “efforts to reshape [their] legal
contentions in the wake of an adverse ruling,” Gen. Elec. Co. v. Johnson, No. 00-CV-2855 (JDB),
2007 WL 433095, at *4 (D.D.C. Feb. 5, 2007), or post-hoc efforts to “re-engineer their privilege
logs to align their privilege assertions with their legal arguments,” In re Honeywell Int'l, Inc. Sec.
Litig., 230 F.R.D. 293, 299 (S.D.N.Y. 2003), is a waiver finding justified.
No waiver of work product protection has occurred here. Plaintiff says that ED has
“waived the applicability of the work-product protection by placing into the record, in Baltezar [v.
Cardona, No. 5:20-cv-455 (N.D. Cal.) (“Baltezar”)], a statement that is absolutely contradicted by
Mr. Finley’s declaration,” because in Baltezar, defendant “filed a declaration from a senior official
asserting that SSA had ‘declined requests from defendant to provide any written response
confirming it would not renew the MOU,’” while ED here asserts that the disputed emails “contain
an SSA employee’s description of ‘her understanding of SSA’s position.’” Pl.’s Opp’n at 14–15
(citations omitted). Yet, the Baltezar declaration is not inconsistent with the Finley declarations
in this litigation. ED’s declarant in Baltezar stated that, prior to the MOU expiring in May 2018:
(1) ED “requested that SSA agree to renew the MOU, but SSA did not do so”; (2) ED’s
“understanding [was] that the SSA orally communicated to attorneys in the Department’s Office
of the General Counsel that it was not inclined to renew the MOU”; and (3) SSA “did not agree to
17 renew the MOU and also declined requests from the Department to provide any written response
confirming it would not renew the MOU.” Def.’s Reply at 11 (quoting Baltezar, Def.’s Mot. to
Dismiss, Decl. of Diane Auer Jones, ECF No. 26-1 ¶ 6 (N.D. Cal. May 26, 2021)). Meanwhile,
Finley explained in his declaration that he asked SSA for information related to “SSA’s decision
not to renew the . . . MOU with the Department, and [an attorney for SSA] described her
understanding of the SSA’s position.” Finley Decl. ¶ 9. Finley did not request, nor did SSA
apparently provide, a statement in writing from SSA about the latter’s declination to renew the
MOU. Finley merely sought assistance in responding to the Maryland plaintiffs’ argument that
ED provided no evidence of the SSA declining to renew the MOU because ED did “not have
anything from SSA on that point.” Finley Suppl. Decl. ¶ 6.
Plaintiff also cries foul at ED shifting the basis for work product protection from initially
representing that the disputed emails were prepared by Finley in “reasonable anticipation of
litigation regarding SSA’s decision not to renew the MOU with” ED, Pl.’s Reply at 4 (quoting
Pl.’s CSMF ¶ 20) (emphasis in original), to then add, in defendant’s combined opposition and
reply, that the basis was to “respond to issues raised in Maryland v. U.S. Dep’t of Education, a
previously unmentioned lawsuit that was pending at the time he corresponded with SSA,” id. at 5
(citing Finley Suppl. Decl. ¶ 6). To be sure, in the Vaughn index and in ED’s motion for summary
judgment, the agency represented that the disputed emails were made in anticipation of future
litigation, but later asserted, in opposition to plaintiff’s cross-motion for summary judgment, that
Finley’s exchanges with SSA were also made for the purpose of preparing for pending litigation
in Maryland. Compare Vaughn Index at 18–26 (asserting that each disputed email “was prepared
by Mr. Finley in reasonable anticipation of litigation regarding SSA’s decision not to renew their
gainful employment MOU with Education”); Def.’s Mot at 1–2 (arguing that disputed emails were
18 made “in reasonable anticipation of potential litigation concerning the Department’s rescission of
the gainful employment rule regulations”), with Def.’s Reply at 11 (explaining that the purpose of
Finley’s email to SSA on September 20, 2019, was to “respond[] to the Maryland plaintiffs’
argument that the Department provided no evidence of the SSA declining to renew the MOU”).
Such waffling explanations may, as here, prompt the need for in camera review of the disputed
withheld records.
Notwithstanding some inconsistency in ED’s justification for application of work product
protection, no waiver is warranted here because either (or both) proffered reason supports such
protection. 7 The Maryland litigation was pending at the time that Finley communicated with
SSA, and his supplemental declaration and the disclosed redacted September 20, 2019 email
reflects that he sought information from SSA to help ED prepare for that litigation. Meanwhile,
as discussed earlier, ED’s anticipation of litigation concerning the rescission of the gainful
employment regulations was a reasonable one. See supra at Section III.B. 8
IV. CONCLUSION
7 As support for a waiver finding, plaintiff relies on the non-binding case of General Electric Company v. Johnson, Pl.’s Reply at 9, where another Judge on this Court determined that an agency’s “fresh privilege claims” “smack[ed] of an attempt by [the agency] to get a second bite at the apple by ‘re-engineering’ its privilege log to advance legal arguments that it failed to make at earlier stages of the litigation” because they “follow[ed] on the heels of a legal ruling rejecting the other bases for withholding the requested documents,” 2007 WL 433095, at *4, but that case is inapposite. In contrast to General Electric Company, ED’s initial and updated explanations for work product protection both support such protection and thus do not reflect the type of gamesmanship found to warrant a finding of waiver in the cited case. 8 Plaintiff also challenges ED’s efforts to segregate and disclose non-protected, responsive information in the disputed emails. Pl.’s Opp’n at 19. While, generally, FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection,” 5 U.S.C. § 552(b), the law in this Circuit is clear that "[i]f a document is fully protected as work product, then segregability is not required.” Jud. Watch, Inc. v. Dep’t of Just., 432 F.3d 366, 371 (D.C. Cir. 2005). Since the doctrine “does not distinguish between factual and deliberative material,” id. (quoting Martin v. Off. of Special Counsel, 819 F.2d 1181, 1187 (D.C. Cir. 1987)), any document prepared in anticipation of litigation is protected completely, whether it contains an attorney's mental impressions or merely collects facts, id. In any event, in camera review confirms the agency complied with its segregation obligations.
19 For the above reasons, ED’s Motion for summary judgment is granted and plaintiff’s cross-
motion for summary judgment is denied. An order consistent with this Memorandum Opinion
will be issued contemporaneously.
Date: July 11, 2023
__________________________ BERYL A. HOWELL U.S. District Court Judge