source: Caselaw Access Project

author: SRINIVASAN, Circuit Judge: SENTELLE, Senior Circuit Judge,

license: Public Domain

text:
    NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Appellant v. United States DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS and United States Department of Justice, Appellees
    No. 15-5051
    United States Court of Appeals, District of Columbia Circuit.
    Argued January 14, 2016
    Decided July 19, 2016
    Reissued December 20, 2016

      Yaakov M. Roth argued the cause for appellant. With him on the briefs were Kerri L. Ruttenberg and Julia Fong Shek-etoff, Washington, DC.
    Jason W. Burge, Alysson L. Mills, and Jesse C. Stewart, New Orleans, LA, were on the brief for amici curiae Sixty-three law professors in support of appellant.
    John D. Cline, San Francisco, CA, was on the brief for amici curiae American Civil Liberties Union, et al. in support of appellant.
    Timothy P. O’Toole and Addy Schmitt, Washington, DC, were on the brief for amici curiae The Constitution Project and The Innocence Project in support of appellant.
    Lewis Yelin, Washington, DC, argued the cause for appellees. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Vincent H. Cohen, Jr., Acting U.S. Attorney, and Leonard Schaitman, Attorney.
    Before: SRINIVASAN, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.
   Concurring opinion filed by Senior Circuit Judge SENTELLE, with whom Senior Circuit Judge EDWARDS joins.

SRINIVASAN, Circuit Judge:

The National Association of Criminal Defense Lawyers submitted a request under the Freedom of Information Act to obtain an internal Department of Justice publication known as the Federal Criminal Discovery Blue Book. The Blue Book is a manual created by the Department to guide federal prosecutors in the practice of discovery in criminal prosecutions. It contains information and advice for prosecutors about conducting' discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants.

The Department refused to disclose the Blue Book, invoking the Freedom of Information Act’s Exemption 5, which exempts from disclosure certain agency records that would be privileged from discovery in a lawsuit with the agency. The Department maintained that the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by (and for) attorneys in anticipation of litigation. The district court agreed that the Blue Book is privileged attorney work product and thus is exempt from disclosure. We likewise conclude that the Blue Book consists of exempt attorney work product, but we remand to the district court for an assessment of whether the Blue Book also contains non-exempt policy statements amenable to reasonable segregation from the privileged work product.

I.

A.

The Freedom of Information Act (FOIA) provides that government agencies must make agency records available to citizens upon request, subject to nine enumerated exemptions. 5 U.S.C. § 552. “Congress intended FOIA to permit access to official information long shielded unnecessarily from public view.” Milner v. Dep’t of Navy, 562 U.S. 562, 565, 181 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (internal citations and quotation marks omitted). The statutory exemptions, accordingly, “are explicitly made exclusive and must be narrowly construed.” Id: (internal citations and quotation marks omitted).

Under Exemption 5, agencies may withhold “inter-agency or intra-agency memorandums or letters which 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). Exemption' 5 covers records that would be “normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). The exemption allows the government to withhold records from FOIA disclosure under at least three privileges: the deliberative-process privilege, the attorney-client privilege, and the attorney work-product privilege. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). This case solely involves the last of those privileges, the attorney work-product privilege.

B.

On December 20, 2012, the National Association of Criminal Defense' Lawyers (NACDL) sent a FOIA request to the Department of Justice (DOJ) seeking disclosure of the Blue Book. DOJ processed the request under the direction of Susan Gerson, Assistant Director in the FOIA/Privacy Act Staff of the Executive Office for U.S. Attorneys. After reviewing the Blue Book and consulting with DOJ staff familiar with the Book’s inception and drafting, Gerson determined that it should be withheld in full pursuant to FOIA Exemptions 5 and 7(E). (The latter, exemption, which we have no occasion to reach, exempts certain types of “records or information compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7)(E).) On February 28, 2013, Gerson sent NACDL a form letter invoking both exemptions and denying its request.

After unsuccessfully appealing the denial, NACDL brought this FOIA suit in the district court seeking to compel- DOJ to release the Blue Book. The parties filed cross-motions for summary judgment, and DOJ again invoked Exemptions 5 and 7(E) in support of its decision to withhold the Blue Book in full. Because the parties disagreed about how to characterize the Blue Book’s contents, the district court reviewed the Book in camera before rendering its decision on the merits of DOJ’s decision to withhold.

Following its in camera review of the Blue Book, the district court granted DOJ’s motion for summary judgment. Nat’l Ass’n of Criminal Def. Lawyers v. Exec. Office for U.S. Attorneys, 75 F.Supp.3d 552 (D.D.C. 2014). The court found that DOJ was not required to disclose-any portion of the Blue Book, holding that the Book in its entirety is protected as attorney work product. Id. at 557, 561. Because the court found that the Blue Book could.be withheld in full under Exemption 5, it did not address the applicability of Exemption 7(E). Id. at 556.

II.

NACDL appeals, arguing that the claimed FOIA exemptions are inapplicable and the Blue Book therefore should be disclosed in full. We review the district court’s decision de novo. See Judicial Watch, Inc. v. Dep’t of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005). In doing so, we must “ascertain whether the agency has sustained its burden of demonstrating that the documents requested are ... exempt from disclosure under the FOIA.” Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)) (quotation marks omitted). When making that determination, we rely centrally on the agency’s descriptions of the content of the relevant documents as set forth in its Vaughn index and accompanying affidavits. See Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).

We conclude that the Blue Book consists of attorney work product which is exempt from disclosure under FOIA’s Exemption 5.

A.

Courts have long recognized that materials prepared by one’s attorney in anticipation of litigation are generally privileged from discovery by one’s adversary. See Hickman v. Taylor, 329 U.S. 495, 510-12, 67 S.Ct. 385, 91 L.Ed. 451 (1947); In re Sealed Case, 146 F.3d 881, 884 (D.C.Cir. 1998). The attorney work-product privilege applies in both civil and criminal cases. See United States v. Nobles, 422 U.S. 225, 236-38, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); Fed. R. Civ. P. 26(b)(3); Fed. R. Crim. P. 16(a)(2), 16(b)(2)(A).

The privilege aims primarily to protect “the integrity of the adversary trial process itself.” Jordan v. Dep’t of Justice, 591 F.2d 753, 775 (D.C. Cir. 1978) (en bane). It does so by “provid[ing] a working attorney with a ‘zone of privacy’ within which to think, plan, weigh facts and evidence, candidly evaluate a client’s” ease, and prepare legal theories.” Coastal States, 617 F.2d at 864. Without the privilege, “much of what is now put down in writing would remain unwritten” because “[a]n attorney’s thoughts, heretofore inviolate, would not be his own.” Hickman, 329 U.S. at 511, 67 S.Ct. 385. Protecting attorney work product from disclosure prevents attorneys from litigating “on wits borrowed from the adversary.” Id. at 516, 67 S.Ct. 385 (Jackson, J., concurring).

“Congress had the attorney’s work-product privilege specifically in mind when it adopted Exemption 5” to the FOIA. Sears, 421 U.S. at 154, 95 S.Ct. 1504. Not every document created by a government lawyer, however, qualifies for the privilege (and thus, the exemption). “[I]f an agency were entitled to withhold any document prepared by any person in the Government with a law degree simply because litigation might someday occur, the policies of the FOIA would be largely defeated.” Coastal States, 617 F.2d at 865. To avoid that result, we have long required a case-specific determination that a particular document in fact was prepared in anticipation of litigation before applying the privilege to government records. See, e.g., Senate of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 586-87 (D.C. Cir. 1987).

In ascertaining whether a document was prepared in anticipation of litigation, we have applied 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 or obtained because of the prospect of litigation.” United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010) (quoting Sealed Case, 146 F.3d at 884). For 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.” Sealed Case, 146 F.3d at 884.

B.

We find those standards satisfied with, regard to the Blue Book. DOJ explains that “[t]he Blue Book was designed to provide advice regarding the law and practice of federal prosecutors’ discovery disclosure obligations and to serve as a litigation manual to be used by all DOJ prosecutors and paralegals” in their cases. Goldsmith First Decl. ¶ 5 (J.A. 93). As a result, DOJ says, the Blue Book was “created in anticipation of reasonably foreseeable litigation,” namely, federal criminal prosecutions. Gerson Decl. ¶ 17 (J.A. 84); see id. ¶ 20 (J.A. 85), We agree.

The Blue Book “describes] the nature and scope of [federal prosecutors’] discovery obligations under applicable constitutional provisions, caselaw, and the Federal Rules- of Criminal Procedure.” Gerson Deck ¶ 20 (J.A. 85). It consists of “nine chapters, written by DOJ prosecutors with expertise in a wide range of discovery-related topics,” addressing subjects including: Federal Rule of Criminal Procedure 16, regarding discovery; the government’s obligations to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); disclosure duties arising from the Jencks Act, 18 U.S.C. § 3500; items protected from disclosure; and the use of protective orders and ex parte and in camera submissions in discovery. Goldsmith First Decl. ¶ 5 (J.A. 93).

According to DOJ, the Blue Book is not a “neutral analysis of the law” but rather “contain[s] confidential legal analysis and strategies' to support the Government’s investigations and prosecutions.” Gerson Deck ¶ 21 (J.A. 86). In contrast with publicly-available documents such as the United States Attorneys’ Manual, which set out statements of agency policy, the Blue Book is an internal manual containing litigation strategies. Goldsmith Second Deck ¶ 7 (J.A. 103). It gives “practical ‘how-to’ advice,” Goldsmith First Deck ¶ 5 (J.A. 94), to federal prosecutors about “how to handle different scenarios and problems,” Ger-son Deck ¶ 20 (J.A. 85). It discusses “the types of challenges [prosecutors] may encounter in the course of prosecutions and potential responses and approaches.” Goldsmith Second Deck ¶ 8 (J.A. 103); accord Goldsmith First Deck ¶ 14 (J.A. 99). The Book “contemplates facts that may arise in judicial proceedings” and evaluates “how a court would likely consider those facts.” Goldsmith First Deck ¶ 6 (J.A. 94).

DOJ thus argues that disclosing the Blue Book would “essentially provide a road map to the strategies federal prosecutors employ in criminal cases.” Id. It contends that disclosure would afford anyone who wanted to read the Blue Book (including opposing counsel) “unprecedented insight into the thought processes of federal prosecutors.” Id. ¶ 12 (J.A. 98). Disclosure thus would “undermine the criminal trial process by revealing the internal legal decision-making, strategies, procedures, and opinions critical to the Department’s handling of federal prosecutions.” Id. ¶ 13 (J.A. 98). In addition, it would “severely hamper the adversarial process[,] as DOJ attorneys would no longer feel free to memorialize critical thoughts on litigation strategies for fear that the information might be disclosed to their adversaries to the detriment [of] the government’s current and future litigating positions.” Id.

Taking into account the nature, content, and function of the Blue Book as described in DOJ’s affidavits, we believe it “can fairly be said to have been prepared ... because of the prospect of litigation.” Deloitte, 610 F.3d at 137 (quoting Sealed Case, 146 F.3d at 884). Our in camera review of the Blue Book confirms that the affidavits accurately describe the Book and its contents. The Book therefore consists of protected attorney work-product.

C.

NACDL does not dispute that the Blue Book was prepared for use in litigation. It claims that the Blue Book nonetheless falls outside the work-product privilege for three reasons: (i) the Blue Book was not prepared in anticipation of litigating a specific claim or case; (ii) the Blue Book principally serves a non-adversarial function; and (iii) the Blue Book’s content resembles that of a neutral treatise. We find each of those arguments unpersuasive.

1.

NACDL’s principal contention is that the Blue Book cannot qualify for the work-product privilege because, even if it was created in contemplation of litigation generally, it was not prepared in anticipation of litigating a specific claim or case. NACDL reads our. decisions to establish a specific-claim requirement for government documents to qualify for work-product protection, at least in the context of government-initiated litigation such as criminal prosecutions. NACDL misunderstands our decisions.

As an initial matter, we have long held that there is no general, overarching requirement that a governmental document can fall within the work-product privilege only if prepared in anticipation of litigating a specific claim. See Sealed Case, 146 F.3d at 885; Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992); Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 126-28 (D.C. Cir. 1987). In Schiller, for instance, we held that the privilege covered NLRB documents providing direction and advice to agency lawyers on the litigation of cases under the Equal Access to Justice Act. 964 F.2d at 1208. We specifically rejected the contention “that the work-product doctrine requires that the documents be created- in anticipation of litigation over a specific claim.”. Id. “Exemption 5 extends to documents prepared in anticipation of foreseeable litigation,” we explained, “even if no specific claim is contemplated.” Id. (citing Delaney, 826 F.2d at 127).

That is not to say that anticipation (or non-anticipation) of a specific claim can never have any relevance when assessing the applicability of the work-product privilege. The contemplation of specific claims can help differentiate situations in which lawyers have litigation adequately in mind from those in which lawyers are not (yet) sufficiently anticipating litigation.

Our decision in Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, is illustrative. Coastal States involved memoranda drafted by Department of Energy lawyers to assist Department auditors in interpreting agency regulations. The auditors used the memoranda when auditing firms for compliance with agency regulations. Those audits were not considered “investigations,” because, “at that point, no charge had been made mor was a violation necessarily suspected.” Id. at 858. But if an auditor subsequently determined that a firm had committed a violation, the audit could turn into a more targeted investigation and, in some cases, give rise to litigation. See id. at 858-60.

We denied application of the work-product privilege to the memoranda in Coastal States, finding “no indication ... that there was even the dimmest expectation of litigation when the[ ] documents were drafted.” Id. at 865. We said that “[t]o argue that every audit is potentially the subject of litigation is to go too far.” Id. The Department thus had “failed to carry its burden of establishing that litigation was fairly foreseeable at the time the memoranda were prepared.” Id. We distinguished the memoranda from documents “prepared with a specific claim supported by concrete facts which would likely lead to litigation in mind.” Id. Accordingly, in a later case involving documents prepared “in the course of an investigation” that “had reached the stage ... at which [the ageney] was comparing the accumulated facts to the caselaw and evaluating” specific legal theories to pursue, we held that litigation was “sufficiently ‘in mind’ for [the] documents] to qualify as attorney work product.” SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1203 (D.C. Cir. 1991).

In both Coastal States and SafeCard, we used language suggesting that, for the documents in question to-be prepared with an enforcement action sufficiently on the horizon to implicate the work-product privilege, the agency’s investigation must have advanced to the point that the documents’ authors contemplated bringing “a specific claim supported by concrete facts.” SafeCard, 926 F.2d at 1202 (quoting Coastal States, 617 F.2d at 865). In neither case, however, did we establish any across-the-board specific-claim prerequisite for application of the privilege. Indeed, as noted, we later specifically disavowed any such specific-claim requirement in Schiller, 964 F.2d at 1208.

Rather, the point of the specific-claim inquiry in Coastal States and SafeCard was to differentiate between audits as to which enforcement litigation might well never take place, Coastal States, 617 F.2d at 865, and active investigations with an enforcement action foreseeably at hand, SafeCard, 926 F.2d at 1202-03. In those cases, looking at whether agency attorneys were contemplating a specific claim proved useful in assessing the likelihood that litigation would ever come to pass. At an early stage, such as a neutral compliance audit with no specific claim (or even any violation) in mind, there is insufficient reason to anticipate litigation. But for documents created at a later stage in which the agency contemplates bringing a specific action, disclosure might reveal the government’s “legal theories,” “weighting of] facts and evidence,” or “candid[] evaluation]” of a case. See Coastal States, 617 F.2d at 864.

We face a very different situation here. A specific-claim requirement would make little sense in the context of the Blue Book. Unlike the audit documents at issue in Coastal States—which might well never be used (or be of use) in litigation—the Blue Book is entirely about the conduct of litigation. It is aimed directly for use in (and will inevitably be used in) litigating cases. Its disclosure therefore risks revealing DOJ’s litigation strategies and legal theories regardless of whether it was prepared with a specific claim in mind. It was prepared with the litigation of all charges and all cases in mind. The presence or absence of a specific claim or transaction might be a helpful consideration in the context of an agency compliance inquiry with no enforcement action or litigation necessarily on the horizon. But it is an unhelpful consideration here given that the Blue Book undoubtedly was created in anticipation of—and for use in—foreseeable litigation, i.e., federal criminal prosecutions.

NACDL relies heavily on our decision in Sealed Case, 146 F.3d 881. There, we considered the applicability of the work-product privilege to a lawyer’s notes and other documents prepared in anticipation of a possible action brought against the lawyer’s client. We found the documents were covered by the privilege even though no specific claim against the client had yet emerged. See id. at 885-86. In discussing the significance of the fact that no specific claim had arisen by the time of the documents’ creation, we drew a distinction between two types of cases. First, we pointed to Coastal States and SafeCard in observing that, in prior eases in which “the documents at issue had been prepared by government lawyers in connection with active investigations of potential wrongdoing,” we had required anticipation of a specific claim in order to invoke the work-product privilege. Id. at 885. By contrast, in cases like Schiller, in which lawyers acted “not as prosecutors or investigators of suspected wrongdoers, but as legal advisors protecting their agency clients from the possibility of. future litigation,” we rejected the need for a specific claim to implicate the privilege. Id. at 885-86. The facts in Sealed Case fell into the latter category.

This case, according to NACDL, fits within the former category because it involves lawyers acting “as prosecutors.” While that may be so, Sealed Case did not hold that, in any case involving documents prepared by or for prosecutors, the work-product privilege could apply only if the documents had been created in anticipation of a specific claim. Instead, because Sealed Case did not involve documents created by prosecutors, we expressly declined to address whether “the Coastal States/SafeCard specific claim test has any continued vitality when government lawyers act as prosecutors or investigators of suspected wrongdoers.” Id. at 885. And as we have explained, the existence (or non-existence) of a specific claim proved salient in those cases as a means of identifying whether documents had been prepared at a time when litigation was sufficiently in mind—i.e., whether “litigation was a real possibility.” Id. at 884. But in the case of a document like the Blue Book, prepared entirely for use in wholly foreseeable (even inevitable) litigation, there is no need to apply any. specific-claim test to conclude that litigation is sufficiently likely to warrant application of the work-product privilege.

2.

NACDL next argues that the Blue Book falls outside the work-product privilege because it aims to advance a non-adversarial function—namely, education and training of prosecutors. NACDL advocates drawing a line between (unprivileged) documents that convey agency policy and (potentially privileged) documents that help the agency prevail in court. Whatever the validity of such a line, it would not advance NACDL’s cause because the Blue Book was designed to help federal prosecutors-prevail in court on behalf of the government.

We have long recognized that the applicability of the work-product privilege can turn in significant measure on a document’s function. See Delaney, 826 F.2d at 127 (citing Coastal States, 617 F,2d at 858). And we agree with NACDL that materials serving no cognizable adversarial function, such as policy manuals, generally would not constitute work product. See Coastal States, 617 F.2d at 863. The Blue Book, however, does serve an adversarial function.

The Book does not merely pertain to the subject of litigation in the abstract. Instead it addresses how attorneys on one side of an adversarial dispute—federal prosecutors—should conduct litigation. It describes how to respond to the other side’s arguments, which cases to cite, and what material to turn over and when to do so, among numerous othér practical and strategic considerations. The Blue Book, for instance, “describes the types of claims defense counsel have raised and could raise regarding different discovery issues, or the tactics they could employ in-litigation ,.. and the arguments prosecutors can make to respond to these' claims.” Gerson Decl. ¶ 21 (J.A. 85).

In any event, insofar as the Blue Book might also serve non-adversarial functions, “a document can contain protected work-product material even though it serves multiple purposes, so long as the protected material was prepared because of the prospect of litigation.” Deloitte, 610 F.3d at 138. As a result, “material generated in anticipation of litigation may also be used for ordinary'business purposes without losing its protected status.” Id. In that light, any educational or training function the Blue Book might serve would not negate the document’s adversarial use in (and its preparation in anticipation of) litigation. The Blue Book therefore qualifies for the work-product privilege.

3.

NACDL also argues that a neutral recitation of legal rules or case law in the manner of a treatise, as opposed to a description of a lawyer’s litigation strategy or theory of the case, fails to qualify as attorney work product. That distinction is of no assistance to NACDL because the latter category more fairly describes the Blue Book than does the former.

In Schiller, we found the work-product privilege applicable to “lawyer-prepared documents containing tips and advice for litigating cases under the Equal Access to Justice Act.” Sealed Case, 146 F.3d at 886 (describing Schiller). Much like the documents at issue in Schiller, the Blue Book contains case-handling tips and tactical advice for litigating discovery matters in criminal prosecutions: “in addition to legal analysis,” the Blue Book includes “a comprehensive set of strategic considerations, procedures, and practical advice for conducting. criminal prosecutions,” much of which is “interspersed within the legal analysis.” Goldsmith First Decl. ¶ 9 (J.A. 96).

As a result, unlike “neutral” accounts of government policy like the United States Attorneys’ Manual, the Blue Book imparts litigation strategy to government lawyers: it conveys “advice on criminal discovery practices, potential strategic and logistical concerns, interpretations of law and risk assessments in light of relevant legal authority, ... practice notes, techniques, procedures, and legal strategies that in-the-field prosecutors may and do employ during the course of criminal proceedings.” Id. ¶ 6 (J.A. 94). As with the tips and advice in Schiller, the Blue Book thus consists of exactly the “sort of information— prepared in anticipation of litigation— [which] falls within the attorney work-product privilege and, therefore, within [EJxemption 5.” Schiller, 964 F.2d at 1208.

To be sure, the Blue Book contains certain information—such as “compilations of cases,” Gerson Deck ¶ 21 (J.A. 85)—that may come with a seeming air of neutrality if considered in strict isolation. But disclosure of the publicly-available information a lawyer has decided to include in a litigation guide—such as citations of (or specific quotations from) particular judicial decisions and other legal sources—would tend to reveal the lawyer’s thoughts about which authorities are important and for which purposes. The Blue Book, for instance, does not include lists of cases in a vacuum. It instead “offers compilations of cases that prosecutors can use to support different arguments” in litigation as well as “[c]ases illustrating potential pitfalls that prosecutors should avoid” when conducting discovery. Id. (J.A. 85-86). That sort of information squarely implicates the work-product privilege.

III.

Finally, NACDL argues that, even if certain portions of the Blue Book qualify as work product and thus are exempt from disclosure, DOJ must disclose any non-exempt portions. NACDL relies on the FOIA’s direction to agencies to disclose any non-exempt “portion” of a record containing exempt material if the nonexempt parts are “reasonably segregable.” 5 U.S.C. § 552(b). And as we have long held, “[t]he focus of the FO'IA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.” Mead Data, 566 F.2d at 260.

As the district court noted, however, an agency need not segregate and disclose non-exempt material if a record is “fully protected” as work product. Nat’l Ass’n of Criminal Def. Lawyers, 75 F.Supp.3d at 557 (quoting Judicial Watch, 432 F.3d at 371). In such cases, because the entire record is exempt from disclosure, there are no non-exempt portions left to segregate. The district court found that the Blue Book is fully protected as work product and thus did not undertake a separate segregability analysis. Id. at 561.

In cases involving voluminous or lengthy work-product records—the Blue Book is more than 500 pages in length—we think it generally preferable for courts to make at least a preliminary-assessment of the feasibility of segregating nonexempt material. When reviewing such records in camera, courts may look at “what proportion of the information in a document [appears to be] non-exempt and how that material is dispersed throughout the document.” Mead Data, 566 F.2d at 261. Material is more likely to be reasonably segregable in longer documents with “logically divisible sections.” See id. at 261 n.54. In such cases, courts -presumably would examine each section to determine if it might be amenable to segregation and disclosure. Such a determination also may be possible on the basis of the agency’s Vaughn index and affidavits, if those materials suggest that a lengthy work-product record likely contains segregable material.

We' recognize that “FOIA places the burden of justifying nondisclosure on the agency seeking to withhold information, and this burden cannot be shifted to the courts by sweeping, generalized claims of exemption for documents submitted for in camera inspection.” Id. at 260. But when an agency has maintained all along that a record is “fully protected” as work product, its Vaughn index and affidavits may not address segregability. In such cases, it may be that portions of the record which otherwise appear to contain neutral information are encompassed within (and integrated with) protected work product and thus there is no portion that is “reasonably segregable.” But there may also be cases in which a record containing some amount of work product also contains—or at least appears to contain—segregable, non-exempt material subject to disclosure. In that circumstance, a court presumably would require the agency to provide “a description of which parts of the withheld documents are nonexempt ... and either disclose them or offer adequate justification for continuing to withhold them.” Id.

In this case, the government acknowledges that it has already publicized its general policy statements about federal prosecutors’ discovery obligations. In its response to the petition for rehearing filed after we issued our original (and hereby superseded) opinion in this case, the government emphasized that the Department of Justice “has made public the agency policy governing federal prosecutors’ discovery obligation,” and provided website links to pertinent sections of the United States Attorneys’ Manual and three memoranda issued by the Deputy Attorney General addressing the topic. Gov’t Resp. to Pet. for Reh’g 11-12. The government’s submissions in this case also confirm that the Blue Book contains a discussion of those policy statements. See Gov’t Br. 46, 61-62. One of the government’s declarations, for instance, notes that Chapter 1 of the Blue Book is entitled, “Department of Justice Policy, Positions, and Guidance.” Goldsmith Second Decl. ¶ 7 (J.A. 103).

In light of the government’s submissions, we think it appropriate to assess whether the Blue Book contains nonexempt statements of policy that are reasom ably segregable from the protected attorney work product and that therefore should be disclosed. Because the district court did not consider whether the Blue Book contains reasonably segregable statements of the government’s discovery policy, we remand for that court to conduct that analysis in the first instance. Such an analysis, we have explained, does not call for parsing the Blue Book “line-by-line” or segregating material “dispersed throughout the document.” Mead Data, 566 F.2d at 261. Instead, the emphasis is on segregation of non-exempt material found in “logically divisible sections.” Id. at 261 n.54. If the district court concludes that the Blue Book contains non-exempt and reasonably segregable statements of the government’s discovery policy, the court could then consider whether Exemption 7(E) of FOIA would protect any of that material from disclosure. The district court to this point has had no occasion to examine the government’s argument that Exemption 7(E) shields the Blue Book from disclosure.

* * * * *

For the foregoing reasons, we affirm the judgment of the district court in part and remand for an assessment of whether the Blue Book contains non-exempt and reasonably segregable statements of discovery policy.

So ordered.

SENTELLE, Senior Circuit Judge,

with whom Senior Circuit Judge EDWARDS joins, concurring:

I concur in the decision of the majority, not because I believe it to be the correct result, but because I am compelled to do so by precedent. Boiling the controversy down to its essence, the answer to one two-part question determines the result: Does the attorney work-product privilege protected by FOIA Exemption 5 protect only information prepared in anticipation of litigating a specific claim; and if not, does it extend far enough to encompass a text prepared for the education of attorneys who may in the future be generally involved in litigation? The majority, I believe correctly, opines that this circuit has answered that question in Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992), and has further restated the answer in In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). In this case, we consider a manual prepared for internal use of the Department of Justice concerning the important legal area of criminal litigation discovery. The manual was prepared not for use in a specific piece of litigation, but for the whole universe of cases that might be encountered by the Department’s criminal attorneys. Likewise, in Schiller, the relevant documents at issue in a FOIA proceeding were prepared to provide tips for the handling of questions that might come up in Equal Access to Justice Act litigation. 964 F.2d at 1208. In Schiller, as reiterated in In re Sealed Case, we held that the attorney work-product privilege adopted in Exemption 5 of the FOIA protected the disputed document. Id. at 1208-09. Although I think the normative and perhaps ethical implications of extending this protection to a prosecutorial manual are sufficient to give pause, I cannot see any legal difference between this case and Schiller which would permit us to reach a different result.

We are bound by the prior decisions of this circuit as .much as those of the Supreme Court. See, e.g., Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (“It is fixed law that ‘this Court is bound to follow circuit precedent until it is overruled either by an en banc court or the Supreme Court.’ ” (quoting Maxwell v. Snow, 409 F.3d 354, 358 (D.C. Cir. 2005))). Schiller, as restated in Sealed Case, held that we found the work-product privilege applicable to “lawyer-prepared documents containing tips and advice for litigating cases under the Equal Access to Justice Act.” Sealed Case, 146 F.3d at 885 (analyzing and restating Schiller). Unless and until the Supreme Court or an en banc decision by this court overrules or modifies Schiller, we must enter decisions consistent with that holding. I hope to see the day when such a reversal or modification occurs, for more than one reason.

First, I believe that Schiller was "wrongly decided in the first instance. As the majority notes, the purpose in the privilege adopted into Exemption 5 is “to protect ‘the integrity of the adversary. trial process itself.’ ” Maj. Op. at 251 (quoting Jordan v. Dep’t of Justice, 591 F.2d 753, 775 (D.C. Cir. 1978) (en banc)). That purpose is served by allowing a litigating attorney “a ‘zone of privacy’ within which to think, plan, weigh facts and evidence....” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980). That goal is accomplished by an exemption which protects from disclosure the litigation decisions and related information in the handling of specific litigation. I grant that it is possible to interpret Exemption 5 broadly; that does not mean it is appropriate to do so. The exemptions to FOJA are “explicitly made exclusive ... and must be ‘narrowly construed.’ ” Milner v. Dep’t of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (quoting FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) (other citations and internal quotations omitted)).

Furthermore, applying the broad construction of Schiller to the ease before us is inconsistent both with the statutory purpose of FOIA and the longstanding values of justice in the United States. The purpose of the Freedom of Information Act is to serve “the citizens’ right to be informed about what their government is‘ up to.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (internal quotation marks omitted). There is no area in which it is more important for the citizens to know what their government is up to than the activity of the Department of Justice in criminally investigating and prosecuting the people. The government certainly has .the power to claim a FOIA exemption to hide its internal manuals describing how it goes about that awesome undertaking. But if it chooses to exercise that power, then the people might be forgiven for cynically asking “what is it you have to hide?”

Reflecting on the consistency of Schil-leFs interpretation of Exemption 5 with the original statutory purposes, one may recall, as does the majority, that the exemption was to protect attorneys in litigation as under the privilege traditionally afforded in litigation itself. I cannot help but wonder if an insurance defense attorney had written a secret treatise passed around among his bar on how to defend— for example—defective product cases, would we, if that treatise became relevant in specific litigation,, afford the protection of the attorney-client privilege to a document not prepared for a particular client or a particular case, but only to educate attorneys of a particular sort in the litigation of a particular kind of case? I think not. But even if we did, I do not think this would justify stretching the FOIA exemption to the point of protecting the departmental tactics and strategies in criminal prosecution from discovery by the citizenry. I cannot help but recall the words of Justice Sutherland for the Supreme Court in Berger v. United States:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovéreignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he .is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

It is often said that justice must not only be done, it must be seen to be done. Likewise, the conduct with the U.S. Attorney must not only be above board, it must be seen to be above board. If the people cannot see it at all, then they cannot see it to be appropriate, or more is the pity, to be inappropriate. I hope that we shall, in spite of Schiller, someday see the day when the people can see the operations of their Department of Justice.

In short, I join the judgment of the majority, not because I want to, but because I have to.


author: EDWARDS, Senior Circuit Judge:

text:
    SEARS, ROEBUCK & CO., et al., Appellants v. UNITED STATES POSTAL SERVICE, Appellee
    No. 15-5330
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 19, 2016
    Decided December 20, 2016

      David M. Levy, Washington, DC, argued the cause for appellants. With him on the briefs were John F. Cooney, Moxila A. Upadhyaya, and Katie M. Wright, Washington, DC.
    - Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were R. Craig Lawrence, Assistant U.S. Attorney, Stephan J. Boardman, Chief Counsel, U.S. Postal Service, and Alice L.A. Covington, Appellate Counsel.
    Before: SRINIVASAN and PILLARD, Circuit Judges, and EDWARDS, Senior Circuit Judge.
   EDWARDS, Senior Circuit Judge:

This case arises from Appellants’— Sears, Roebuck and Co. (“Sears”), Segerdahl Graphics, Inc. (“Segerdahl”), and Aspen Marketing Services, LLC (“Aspen”)— use of the United States Postal Service (“Postal Service”) for delivery of bulk mailings. In 2009, Appellants mailed over 8.2 million folded self-mailers, i.e, mail that can be folded and sent without envelopes, for which they paid postage at a discounted automation rate. To qualify for the discounted rate, Appellants certified that their mailings met the applicable sealing requirements for oblong self-mailers. These requirements stated, in relevant part: “If the piece is 7 inches long or more, the piece must be sealed on the top and the bottom.” Domestic Mail Manual (“Manual”) § 201.3.14.1c (May 11, 2009).

Following an investigation, the Postal Service determined that Appellants were ineligible for the discounted rate because their mailers, which exceeded seven inches in length, had been sealed only on the left edges, and not on the top and bottom edges. The Postal Service assessed revenue deficiencies against Appellants for over $1.25 million. The assessments were upheld by the Postal Service’s Pricing and Classification Service Center (“PCSC”).

Appellants sued the Postal Service in the District Court to overturn the decisions of the PCSC. Appellants argued that the Manual did not specify where along the top and bottom edges the seals must be placed, and that their seals along the left edge were close enough to the top and bottom to effectively seal those edges in compliance with the Manual requirements. Appellants thus claimed that the Postal Service’s interpretation of the Manual, and the PCSC’s decisions upholding that interpretation, should be set aside as unreasonable. In their appeal to this court, Appellants additionally contend that, in the arguments presented to the District Court,' counsel for the Postal Service offered a new interpretation of the Manual that could not be squared with the PCSC’s decisions. According to Appellants, the District Court’s reliance on this new interpretation violated the commands of SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943).

We can find no inconsistency in the Postal Service’s interpretation of the Manual. The PCSC’s decisions clearly held that, under the applicable 2009 sealing requirements, seven-inch or longer oblong self-mailers had to be sealed somewhere “on” the top and bottom edges. The PCSC also found that seals on the left edge that approached the top and bottom were not “on” the top and bottom. The Postal Service’s arguments to the District Court were not at odds with the PCSC’s decisions. We also find that the Postal Service’s interpretation of the sealing requirements is perfectly consistent with the terms of the Manual and entirely reasonable.

For the reasons explained below, we deny Appellants’ challenges to the PCSC’s decisions and affirm the judgment of the District Court enforcing the revenue deficiencies against Appellants. However, because the Government has confessed error with respect to surcharges on the revenue deficiencies, we reverse and vacate the District Court’s award of surcharges against Appellants.

I. BACKGROUND

The eligibility requirements for automated rates are codified in the Manual and incorporated by reference in the Code of Federal Regulátions. See 39 C.F.R. § 111.1. Appellants do not challenge the Postal Service’s authority to promulgate the sealing requirements at issue in this case. See 39 U.S.C. § 401(2). These requirements have been changed since 2009, but the parties agree that the May 11, 2009 version of the Manual governs the resolution of this'case.

In 2009, the Manual requirements for sealing on the open edges of folded self-mailers depended upon a mailer’s size, weight, number of pages, and place of folding. Manual § 201.3.14.1. With respect to mailers folded on the right edge, the Manual stated:

The left edge (trailing, edge) and other open edges must be secured with at least one tab or a, glue line. The number of tabs required is determined by the final trim size and paper basis weight of the piece, If the piece is 7 inches long or more, the piece must be sealed on the top and the bottom.

Manual § 201.3.14.1c.

The Postal Service also published a Quick Service -Guide (“Guide”) that included illustrations showing examples of -the correct use of tabs, seals, and glue strips or spots on folded self-mailers. Guide § 201b at 2. One illustration depicted a folded self-mailer folded on the right edge with the trailing (left), top, and bottom edges open.

Id, The illustration made it clear that separate sealants must be placed on the trailing, top, and bottom edges. Id. Although the illustration showed “tabs” as the method of sealing, the Guide made it plain that, “[a]s an alternative to tabs or wafer seals, the open -edge of the length of the mail-piece may be continuously glued or spot glued.” Id. at 1.

In April 2009, an agent for Sears mailed out approximately 5.8 million folded self-mailers (“Sears Mailers”). In August 2009, Sears hired Segerdahl to mail out approximately half a million folded self-mailers (“Segerdahl Mailers”). In December 2009, Aspen mailed out approximately 1.9 million folded self-mailers (“Aspen Mailers”). There is no dispute that all three mailers were subject to the sealant requirements of Manual § 201.3.14.1c.

The Sears and Segerdahl Mailers were sealed by “a pair of elongated glue dots” parallel to the trailing edge, each elongated glue dot reaching to within one-half of an inch to one inch from the top or bottom edge. Joint Appendix (“JA”) 211; see also JA 24, 211-12, The Aspen Mailers were similarly sealed with “two long glue .lines placed at the end of the trailing edge,” JA 394, and extended “close to the top and bottom edges,” id. or were “flush” with the top and bottom edges, Br. for Appellants at 11. Aspen, Segerdahl, and Sears (through its agent) certified that their mailers complied with the automated standards and paid the discounted automated rates. See Manual § 607.1.1.

The Postal Service assessed revenue deficiencies against each Appellant for their respective mailers. The deficiency letter to Sears stated that its mailers were “not prepared in accordance with automation design standards but received] automation ' rates” and assessed a revenue deficiency of $1,033,597.19. JA 22. An Investigative Memorandum accompanying the deficiency letter stated the trailing edges were sealed, but “[tjhere were no additional tabs or glue spots on any of the other open sides,” JA 24, even though the Postal Service required “that all open sides needed to be sealed with tabs or glue spots, consistent with the illustration contained within the Quick Service Guide, section 201b,” JA 25. The Postal Service also assessed a deficiency of $94,978.27 against Sears for the Segerdahl mailings and a deficiency of $125,367.01 against Aspen for its mailers. Each letter stated that the mailers, “lacked appropriate seals (tabbing or glue spot) at the open edges (top and bottom), as required.” JA 141, 172. Appellants then appealed to the PCSC to seek review of the deficiency assessments.

The PCSC confirmed that the Sears Mailers were “secured by means of two one inch glue lines on the trailing edge one within one inch of the top edge and the other within one inch of the bottom edge.” JA 2. The PCSC made it clear, however, that this arrangement did not satisfy the applicable sealing requirements. Id. The PCSC noted in passing that the Investigative Memorandum filed by the Postal Inspector stated that “the top and bottom edges required a tab at the center of each edge,” id. but this was not the basis for PCSC’s decision. Rather, in rejecting Sears’ claim that the trailing edge glue served to seal the top and bottom, the PCSC. stated that the

left edge (trailing edge) and other open edges must be secured with at least one tab or a glue line. The number of tabs required is determined by the final trim size and paper basis weight of the piece. If the piece is 7 inches long or more, the piece must be sealed on the top and the bottom.... [T]he placement of the glue lines near the trailing edge did not serve to secure the top and bottom open edges.

Id.

As to the Segerdahl Mailers, the PCSC likewise found that the “placement of the glue lines near the trailing edge did not serve to secure the top and bottom open edges.” JA 126. As to the Aspen.Mailers, the PCSC rejected the challenge to the deficiency assessment on the ground that “the top and bottom edges were not sealed.... The standards clearly state that the top, bottom, and trailing edges must be sealed.” JA 166.

On June 18, 2014, Appellants filed suit in District Court against the Postal Service to set aside the revenue deficiencies. Appellants alleged the Postal Service’s decisions violated the Manual because, “[w]hile the fourth sentence of former [Manual] § 201.3.14.1.C required that pieces ‘7 inches long or more’ be sealed ‘on the top and the bottom,’ the rule did not specify where along the top and bottom edges the seals must be placed.” JA 226-27. The Postal Service cross-claimed for enforcement of the revenue deficiencies. Appellants and the Postal Service then filed cross-motions for summary judgment.

The District Court upheld the PCSC’s decisions and entered judgment on the Postal Service’s counterclaim under the Federal Debt Collection Procedure Act, 28 U.S.C. §§ 3001 et seq., and the Federal Debt Collection Improvement Act, 31 U.S.C. §§ 3701 et seq., in the amount of the revenue deficiencies assessed, plus a ten percent statutory surcharge. Sears, Roebuck & Co. v. USPS, 134 F.Supp.3d 365 (D.D.C. 2015). The court found that the PCSC’s interpretation of the Manual was supported by the language and purpose of the regulation, and that the Postal Service had engaged in reasoned decision-making in issuing the deficiency assessments. The District Court additionally noted that Appellants’ “problem was not an off-center tab or glue spot; the problem was that there was essentially no seal on the top and the bottom.” Id. at 377. On November 20, 2015, Appellants filed a timely appeal with this court.

On September 22, 2016, the Postal Service submitted a letter to the court confessing error as to the ten percent surcharges. The letter stated, inter alia, that,

upon further consideration, the government has determined that it is not in fact entitled to a surcharge under 28 U.S.C. § 3011(a) where, as here, it has not sought the pre- or post-judgment remedies referenced in § 3011(a). The government therefore will not collect the surcharge that the District Court awarded in this case, and it does not oppose vacatur of the part of the District Court’s judgment that awarded the surcharge.

Confession of Error Letter at 2 (Sept. 22, 2016), ECF No. 1637245.

II. ANALYSIS

A. Standard of Review

“Apart from two very limited exceptions” that are irrelevant here, the judicial review provisions of the Administrative Procedure Act (“APA”) are “not applicable ‘to the exercise of the powers of the Postal Service.’” Carlin v. McKean, 823 F.2d 620, 622 (D.C. Cir. 1987) (quoting 39 U.S.C. § 410(a)); see also N. Air Cargo v. USPS, 674 F.3d 852, 858 (D.C. Cir. 2012). Nevertheless, under the law of this circuit, Postal Service decisions are still subject to rion-APA judicial review in some circumstances. See, e.g., Nat’l Ass’n of Postal Supervisors v. USPS, 602 F.2d 420, 432 (D.C. Cir. 1979) (“That the Postal Service has broad discretion ... does not mean ... that its decisions are entirely insulated from judicial surveillance”). The scope of non-APA review is narrow, however. See, e.g., Aid Ass’n for Lutherans v. USPS, 321 F.3d 1166, 1173 (D.C. Cir. 2003) (“[J]udi-cial review is available when an agency acts ultra vires”); see also Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300, 307 (D.C. Cir. 2014) (construing Aid Ass’n for Lutherans to apply to an analogous provision exempting the Postal Regulatory Commission from APA review; holding that judicial review “is available only to determine whether the agency has acted ‘ultra vires’—that is, whether it has ‘exceeded its statutory authority’ ”).

In prior cases, we have construed the scope of non-APA review to include: (1) “a straightforward question of statutory interpretation,” Nat’l Ass’n of Postal Supervisors, 602 F.2d at 432; see also N. Air Cargo, 674 F.3d at 858-59; (2) a question concerning whether a regulation in the Manual was a valid exercise of the Postal Service’s authority, Nat’l Retired Teachers Ass’n v. USPS, 593 F.2d 1360, 1363 (D.C. Cir. 1979); see also Aid Ass’n for Lutherans, 321 F.3d at 1175; and (3) á question focusing on whether a Postal Service decision was supported by the agency’s contemporaneous justification or, instead, reflected counsel’s post hoc rationalization, N. Air Cargo, 674 F.3d at 859-60 (applying Chenery, 318 U.S. 80, 63 S.Ct. 454).

The Postal Service acknowledges that the applicable standard of review in this case is “whether the agency has engaged in ‘reasoned decision-making.’ ” Br. for Appellee at 18 (citing Greater Bos. Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970); Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co. (“State Farm”), 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Although the. Postal Service argues that “[t]his standard of review is ‘extremely limited’ and less intrusive than APA review,” id. the “reasoned decision-making” standard it cites is the paradigm of APA review, see Edwards, Elliott, & Levy. Federal Standards of Review 203-10 (2d ed. 2013) (discussing the requirement of “reasoned decisionmaking” under State Farm).

Arguably, there is a question as to whether reasoned decision-making review can be squared with the seemingly more limited scope of review outlined in the court’s decisions in Aid Ass’n for Lutherans and Mittleman. We need not tarry over this question, however,'because “[t]he judicial review provisions of the APA are not jurisdictional, so a defense based on exemption from the APA can be waived by the Government.” Air Courier Conf. v. Am. Postal Workers Union, 498 U.S. 517, 523 n.3, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991) (citation omitted). Because the Postal Service agrees that the reasoned decision-making standard of review applies, Br. for Appellee at 17-22, we will assume the same.

B. The Agency’s Interpretation of the Sealing Requirement Has Not Changed over the Course of These Proceedings.

Under Chenery, “an administrar tive order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.” 318 U.S. at 95, 63 S.Ct. 454. “[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained,” so that the reviewing court can be assured the agency “has exercised the discretion with which Congress has empowered it.” Id. at 94-95, 63 S.Ct. 454.

Appellants contend that the District Court’s decision flouts the commands of Chenery. In particular, Appellants argue:

In the briefs of the Postal Service, the construction of former [Manual] § 201.3.14.1c underwent several radical changes. The briefs repudiated the legal theory actually adopted by the PCSC— that former [Manual] § 201.3.14.1c required the top and bottom edges to be sealed “at the center of each” edge. Appellate counsel advanced instead a succession of alternative interpretations of the rule—several of which the same counsel in turn abandoned.

Br. for Appellants at 21. We reject this argument because it misconstrues the record.

As noted above, the PCSC’s decisions noted in passing that the Postal Inspector’s Investigative Memoranda stated that “the top and bottom edges required a tab at the center of each edge.” JA 2, 126. This, however, was not the basis for the PCSC’s decisions. Rather, the PCSC made it clear that, under the applicable sealing requirements, the “left edge (trailing edge) and other open edges must be secured with at least one tab or a glue line,” and that “the piece must be sealed on the top and the bottom.” Id. The PCSC did not say that center placement of the glue or tabs was part of the requirement. Rather, it merely said that “the placement of the glue lines near the trailing edge did not serve to secure the top and bottom open edges.” Id.

Before the District Court, counsel for the Postal Service reasonably referenced the final decisions of the PCSC to “make clear that the core problem with plaintiffs’ self-mailers was that there was no seal on the top or bottom at all, not that it was off-center.” JA 322 n.6. This representation was not at odds with the PCSC’s decisions, nor did it reflect a post hoc rationalization of the agency’s interpretation of the Manual. See, e.g., Chiquita Brands Int’l Inc. v. SEC, 805 F.3d 289, 299 (D.C. Cir. 2015) (“Chenery does not bar an agency’s counsel from merely elaborating on the consistent stance the agency articulated below”).

Appellants seem to suggest that the agency was bound to thé statement in the Investigative Memoranda suggesting that a center placement of the glue or tabs was part of the sealing requirement. This is simply wrong. The Investigative Memoranda were prepared by the Postal Inspector, whose authority is to “investigate all allegations of violations of postal laws or misconduct by all' ... persons [other than postal employees].” 39 C.F.R. § 233.1(b)(1)(h). The Postal Inspector does not serve an adjudicative function. It is the local Post Office that assesses the initial revenue deficiency. Any dispute over an assessment must be appealed to the PCSC, which in turn “issues the final agency decision.” Manual § 607.2.1; see also id. § 607.2.5.

The separation of investigatory and adjudicatory functions is a familiar feature in some administrative agencies. For example, in the Department of Labor, the Occupational Safety and Health Act of 1970 (“OSH”) “charges the Secretary [of Labor] with responsibility for setting and enforcing workplace health and safety standards.... If the Secretary (or the Secretary’s designate) determines upon investigation that an employer is failing to comply with such a standard, the Secretary is authorized to issue a citation and to assess the employer a monetary penalty.” Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 147, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). However, the “Commission is assigned to ‘carr[y] out adjudicatory functions’ under the Act.” Id. (citation. omitted); see also RAG Cumberland Res. LP v. Fed. Mine Safety & Health Review Comm’n, 272 F.3d 590, 592, 595 (D.C. Cir. 2001) (explaining division of authority in the Mine Act between inspecting and issuing citations for violations of the Mine Act, which is the purview of the Secretary of Labor, and adjudicating disputes under the Mine Act, “including challenges by mine operators to citations and orders issued by the Secretary of Labor,” which is the purview of the Federal Mine Safety and Health Review Commission).

Here, the Postal Inspector’s purview is even more limited than the Secretary of Labor under OSH or the Mine Act, for the Postal Inspector does not establish regulatory standards. And the Postal Inspector certainly does not issue decisions that constitute final agency actions. The Postal Inspector’s Investigative Memoranda in this case did not even recommend sanctions. Instead, the Memoranda merely stated that the Postal Inspector “initiated an investigation of a potential revenue deficiency,” JA 24, and concluded “a revenue loss ... is attributed to this mailing,” JA 26. See also JA 174, 176. The initial determinations regarding assessments for revenue deficiencies were made by local post offices, and the PCSC issued the final agency decisions approving the assessments.

What matters here is what the PCSC said ' in justifying the assessments against Appellants. As we have explained, the PCSC did not interpret the Manual to require á center placement of the glue or tabs. What the PCSC found, and the District Court confirmed, was that Appellants’ “problem was not an off-center tab or glue spot; the problem was that there was essentially no seal on the top and the bottom.” Sears, Roebuck & Co., 134 F.Supp.3d at 377. This has been the consistent position of the Postal Service during the entire course of these proceedings. Therefore, we reject Appellants’ argument that the District Court’s decision defies Chenery.

C. The Postal Service’s Interpretation of the Sealing Requirements Was Reasonable.

' Under the applicable standard of review, we are constrained to defer to the agency’s interprétation of the Manual if it “sensibly conforms to the purpose and wording of the regulations.” Fabi Constr. Co. v. Sec’y of Labor, 370 F.3d 29, 36 (D.C. Cir. 2004) (quoting Montgomery KONE, Inc. v. Sec’y of Labor, 234 F.3d 720, 722 (D.C. Cir. 2000)). In their brief to this court, Appellants proffer alternative interpretations of the sealing requirements in an effort to undercut the PCSC’s decisions. Their arguments cannot carry the day.

The PCSC’s decisions upholding the Postal Service’s interpretation of the Manual’s sealing requirements easily survive review pursuant to the reasoned decision-making standard. The PCSC held that a self-mailer longer than seven inches must have one tab (or glue line) on the left edge, one on the top, and one on the bottom. This holding conforms precisely to the plain language of the Manual. Likewise, the PCSC’s holding that the two glue lines on the left edge of Appellants’ mailers were not “on” the top or bottom merely because they were “near” the top and bottom edges is a perfectly reasonable construction of the Manual. Indeed, the illustration in the Postal Service’s Quick Guide—with three separate tabs sealing the left, top, and bottom edges—gave Appellants clear notice of the sealing requirements.

Appellants contend that it was not necessary for the Postal Service to require three tabs or glue lines to prevent hollow, circular mail pieces that might, jam mail sorting equipment. This is not the point, however. There is no doubt that the sealing requirements as interpreted by the Postal Service effectively served to limit jams in mail sorting equipment. It does not matter that different requirements might have served the same purpose. What matters here is that the sealing requirements were reasonable and Appellants had clear notice of what was necessary in order to qualify for the discounted automation rate. Therefore, pursuant to the reasoned decision-making standard, we will not second-guess the Postal Service’s reasonable judgments regarding Manual, requirements. See, e,g,, USPS v. Postal Regulatory Comm’n, 785 F.3d 740, 750 (D.C. Cir. 2015) (“[W]e review the [Postal Regulatory] Commission’s interpretation of its own regulations with substantial deference, allowing that interpretation to control unless plainly erroneous or inconsistent with the regulation” (citation and internal quotation marks omitted)); Orengo Caraballo v. Reich, 11 F.3d 186, 193 (D.C. Cir. 1993) (“While we require the [Department of Labor] to offer a reasoned analysis ..., we do not sit in review to substitute our judgment for that of the agency”).

Finally, Appellants contend that sealing requirements adopted after 2009 would not pass muster under the Postal Service’s construction of the 2009 requirements. This claim is self-evidently irrelevant because, as we have found, the 2009 requirements were reasonable and we have no occasion here to assess requirements adopted after 2009.

III. CONCLUSION

We hereby deny Appellants’ challenges to the PCSC’s decisions and affirm the judgment of the District Court enforcing the revenue deficiencies' against Appellants. We reverse and vacate the District Court’s award of surcharges against Appellants.

So ordered.


author: PER CURIAM:

text:
    UNITED STATES SUGAR CORPORATION, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent American Chemistry Council, et al., Intervenors
    No. 11-1108
    Consolidated with 11-1124, 11-1134, 11-1142, 11-1145, 11-1159, 11-1165, 11-1172, 11-1174, 11-1181, 13-1086, 13-1087, 13-1091, 13-1092, 13-1096, 13-1097, 13-1098, 13-1099, 13-1100, 13-1103
    United States Court of Appeals, District of Columbia Circuit.
    Decided December 23, 2016
    Before: HENDERSON, BROWN, and GRIFFITH, Circuit Judges.
   PER CURIAM:

Among the many challenges to the EPA’s Major Boilers Rule in these consolidated cases, we granted the petition brought by the Environmental Petitioners to review the EPA’s decision to. exclude certain sources from its calculation of Maximum Achievable Control Technology (MACT) emissions standards for major-boiler subcategories, and vacated any standards that had been “affected” by the flawed calculation. U.S. Sugar Corp. v. EPA, 830 F.3d 579, 682 (D.C. Cir. 2016).

On September 12, 2016, the EPA filed a petition for a panel rehearing asking that the major-boiler standards be “remanded to [the] EPA without vacatur for the Agency to conduct rulemaking to determine which standards are ‘affected’ and to modify them in accordance with the Court’s opinion.” EPA Pet. Reh’g 1. All relevant parties in this matter support the EPA’s request. Joint Resp. Industry Pet’rs 3; Envtl. Pet’rs’ Resp. 1.

Although remand without .vaca-tur may in some circumstances invite prejudicial agency delay, see, e.g., In re Core Commc’ns, Inc., 531 F.3d 849, 862-63 (D.C. Cir. 2008) (Griffith, J., concurring), in' other circumstances vacatur itself carries more-harmful consequences. We have therefore frequently remanded without vacating when a rule’s defects are curable and “where vacatur ‘would at least temporarily defeat ... the enhanced protection of the environmental values covered by [the, EPA rule at issue].’ ” North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008) (per curiam) (alterations in original) (quoting Envtl. Def. Fund, Inc. v. EPA, 898 F.2d 183, 190 (D.C. Cir. 1990)); see also Natural Res. Def. Council v. EPA, 489 F.3d 1250, 1265 (D.C. Cir. 2007) (“Where the court has concluded that a final rule is deficient, the court has traditionally not vacated the rule if doing so would have serious adverse implications for public health and the environment.”). Vacating the standards at issue here would unnecessarily remove many limitations on emissions of hazardous am pollutants from boilers and allow greater emissions of those pollutants until EPA completes another rulemaking and implements replacement standards. See EPA Pet. Reh’g 6.

In light of our precedent and the parties’ agreement that this case presents one of the circumstances in which remand without vacatur makes the most sense, we remand without vacating the numeric MACT standards set in the Major Boilers Rule for new and existing sources in each of the eighteen subcategories. On remand, the EPA is to identify those standards for which the MACT floor would have differed if the EPA had included all best-performing sources in each subcategoiy in its MACT-floor analysis. The . EPA must then revise those standards consistent with-our July 29, 2016 opinion in this case.

Although the Industry Petitioners stress the importance of the EPA expeditiously completing the rulemaking, we have not been asked to impose a deadline by which the EPA must act. Even so, we expect the EPA to Complete this rulemaking promptly. We also “remind the Petitioners that they may bring a mandamus petition to this court in the event that [the] EPA fails to” revise its standards on remand “in a manner consistent with our” earlier opinion. North Carolina, 550 F.3d at 1178 (citing Natural Res. Def. Council, 489 F.3d at 1264 (Randolph, J., concurring)).

So ordered.

      . National .Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters, 76 Fed. Reg. 15,608 (Mar. 21, 2011), as amended, National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters, 78 Fed. Reg. 7,138 (Jan. 31, 2013).

        . Because the parties agree as to the appropriate remedy, a formal rehearing is unnecessary.