Abtew v. DHS, 808 F.3d 895 (D.C. Cir. 2015) (Kavanaugh, J.)

Abtew v. DHS, 808 F.3d 895 (D.C. Cir. 2015) (Kavanaugh, J.)

Re: Request for recommendation as to whether to grant alien’s request for asylum in United States

Disposition: Affirming district court's grant of defendant's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the District of Columbia Circuit holds that "[i]n [plaintiff's] case, the Assessment to Refer was both pre-decisional and deliberative."  "The Assessment was pre-decisional; it was merely a recommendation to a supervisor."  "The supervisor, not the official writing the Assessment, made the final decision."  "The Assessment was also deliberative; it was written as part of the process by which the supervisor came to that final decision."  "The Assessment itself had no 'operative effect.'"  Responding to one of plaintiff's arguments, that defendant "adopted [the Assessment to Refer] as the 'final decision[,]'" the court finds that "[t]hat is incorrect."  "The Department publicly explained its final decision through a Referral Notice."  "That Referral Notice represented the final decision."  "The Notice did not mention the Assessment at all."  Further, the court found that the fact that the supervisor initialed the Assessment "does not transform the Assessment into the Department’s final decision."  "Initialing a memo may suggest approval of the memo’s bottom-line recommendation, but it would be wrong and misleading to think that initialing necessarily indicates adoption or approval of all of the memo’s reasoning."   Moreover, the lack of a "give-and-take in the agency’s process" was an unavailing argument given that "[a] recommendation to a supervisor on a matter pending before the supervisor is a classic example of a deliberative document."  Finally, responding to another of plaintiff's arguments, "that the Department is estopped because it has not always invoked the deliberative process privilege for other Assessments[,]" the court finds that "[p]ut simply, an agency does not forfeit a FOIA exemption simply by releasing similar documents in other contexts."