Samahon v. DOJ, No. 13-6462, 2015 WL 857358 (E.D. Pa. Feb. 27, 2015) (Slomsky, J.)
Re: Request for two OLC memoranda concerning recess appointments
Disposition: Granting in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment; reserving judgment on remainder of defendant's motion for summary judgment pending in camera inspection
- Exemption 5, Deliberative Process Privilege: The court holds that the memoranda were covered by the deliberative process privilege. The court explains that "[t]he [first] Memorandum was predecisional because the Memorandum was provided to the President on February 20, 2004—the day that George W. Bush appointed William H. Pryor to the Court of Appeals for the Eleventh Circuit during an intrasession recess of the Senate." "The fact that the [first] Memorandum was dated the same day that President Bush made the appointment does not create an inference that the OLC Memorandum was a 'final agency decision.'" "The [first] Memorandum is also deliberative" because "[i]t was prepared merely to assist and advise on relevant law and policy to aid the President in his consideration of the appointment." Additionally, the court finds that "[t]he [second] Memorandum is clearly predecisional because it was never delivered to Counsel for President Obama." "As a file memorandum, it reflects no final agency policy that was adopted or became a final opinion." "The [second] Memorandum is also purely deliberative in nature." "It contains only possible future advice, and does not purport to express the OLC's final views on recess appointments, much less the views of the DOJ or the President."
The court also disagrees with "[plaintiff's] argu[ment] that by adopting [a third] Memorandum, the Obama Administration by extension has adopted the [first] and [second] Memoranda." The court does find that, "[a]lthough the OLC is not an agency policymaker and its memoranda are not binding on those who request it, an OLC memorandum is still final when it serves as the OLC's last word on the subject matter that was provided to the decisionmaker who requested it." "Here, the [third] Memorandum was in fact the last word by the OLC on the subject of recess appointments during pro forma sessions of the Senate." "The OLC even voluntarily chose to disclose the [third] Memorandum to the public, further evidencing its finality." Additionally, the court finds that "[b]ecause President Obama made the recess appointments during one of the Senate's pro forma sessions, he clearly adopted the conclusion in the [third] Memorandum." However, the court finds that "there is no evidence that President Obama or any member of his administration expressly incorporated the reasoning of the [third] Memorandum, and by extension, the reasoning of the [first] and [second] Memoranda." Additionally, the court finds that "'[t]emporal proximity' between the recess appointments and the [third] Memorandum is too speculative to infer adoption." Also, the court finds that "the connection between  verbal advice, the [third] Memorandum, and [former White House Press Secretary] Carney's comments is too tenuous and speculative to find express adoption of the reasoning in the [third] Memorandum by President Obama." Similarly, the court finds that "Carney's deferral to the [third] Memorandum in response to the reporter's question is an insufficient basis on which to find that the Memorandum's reasoning was adopted on behalf of the President as a decisionmaker, and by extension, the reasoning in the [first] and [second] Memoranda." Also, the court finds that "[b]ecause the NLRB was not the 'decisionmaker' behind the recess appointments, which was the President, its adoption of the analysis is not binding on President Obama and is not relevant to whether the Obama Administration made an adoption of the reasoning of the [third] Memorandum." Also, the court finds that "[e]ven assuming arguendo that the Administration adopted the [third] Memorandum, it does not necessarily follow that by referring to the [first] and [second] Memoranda in the [third] Memorandum, the Administration expressly adopted the reasoning of these two memoranda as a matter of course" because "[t]he [third] Memorandum's citations to the factual material and conclusions in the [first] Memorandum are made without expressly adopting its reasoning" and "the citations to and quotes from the [first] and [second] Memoranda do not contain policy reasons and are minor factual references given the length and overall content of the [third] Memorandum."
The court also holds that "[t]he [first] and [second] Memoranda, as OLC memoranda, do not constitute 'working law.'" "They are not an expression of final agency policy because they are advisory and cannot bind the President in his decisionmaking."
- Exemption 5, Attorney-Client Privilege: The court holds that "[b]oth the [first] and [second] Memoranda are protected by the attorney-client privilege." "At the request of Counsel to the President, the documents were prepared by the OLC in its capacity as a legal adviser to the Executive Branch." "Thus, attorney-client conversations led to the preparation of both memoranda." "These are protected confidential communications." "Thereafter, the memoranda were prepared which offered legal advice concerning the President's authority to make recess appointments during Senate intrasession recesses." "By their very nature, they would contain information relating to communications between an attorney and the client." The court also finds that "the fact that the [second] Memorandum was never delivered to Counsel for the President does not negate the attorney-client privilege."
The court also holds that "[plaintiff's] arguments under the fairness doctrine are not persuasive because he does not distinguish between waiver of the attorney-client privilege through selective disclosure in the traditional litigation context and waiver of the privilege in FOIA cases." "As mentioned, the primary purpose behind the fairness doctrine is to prevent unfair prejudice to a party in litigation." "Thus, [plaintiff's] argument fails because the OLC did not use the selective disclosures of the [first] or [second] Memoranda as a weapon in any litigation context with [plaintiff]."
- Exemption 5, Presidential Communications Privilege: The court holds "that the [first] Memorandum falls squarely within the presidential communications privilege because it was communicated to one of the President's senior advisors—the Counsel for the President—in connection with the President's deliberations and use of his appointment power—a 'quintessential and nondelegable Presidential power.'"
- Litigation Considerations, In Camera Inspection: "[T]he Court will order that the DOJ provide the Court only with the [second] Memorandum for in camera inspection" because "[defendant's] affidavit falls short of [the] standard: it provides no description of the process of separating facts from privileged material and it provides no factual recitation of why certain materials were not reasonably segregable" and the court cannot determine whether the second memorandum contained "factual material that would not reveal confidential communications between attorney and client." However, the court finds that "[b]ecause the [first] Memorandum is protected by an additional privilege, the presidential communications privilege, an in camera inspection of the Memorandum for any reasonably segregable factual material is not required."