Courthouse Steps Oral Argument Teleforum: U.S. Fish and Wildlife Service v. Sierra Club

Listen & Download

Under the Clean Water Act, the Environmental Protection Agency (EPA) must approve clean water intakes, used by factories to cool machinery, before any are built. The EPA is required to consult with the Fish and Wildlife Service and National Marine Fisheries Service to conduct a study of the new intake on marine life. The Sierra Club made a Freedom of Information Act (FOIA) request for records made by the EPA during the agency's rule making process, including the documentation of consultation with the services. The Services records were withheld citing Exemption 5 of the FOIA shielding from disclosure documents subject to the "deliberative process privilege". The district court determined twelve of the sixteen restricted documents were not subject to Exemption 5. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court's order to disclose some of the records but reversed the decision regarding two of the records. Our discussion will review the record and discuss next steps.


Damien Schiff, Senior Attorney, Pacific Legal Foundation

Moderator: Nancie G. Marzulla, Partner, Marzulla Law


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Nick Marr:  Welcome, all, to The Federalist Society’s Teleforum conference call. This afternoon, November 2, 2020, we have a special Courthouse Steps Oral Argument Teleforum on U.S. Fish and Wildlife Service v. Sierra Club. I’m Nick Marr. I’m Assistant Director of Practice Groups at The Federalist Society.


As always, please note that expressions of opinion on today’s call are those of our experts.


We’re fortunate to have with us today two experts. I’m just going to introduce our moderator, Nancie G. Marzulla. She’s a partner at Marzulla Law. Nancie’s going to take it from here introducing our speaker and covering the case and getting some remarks started. After that, we’ll have a portion of audience question and answer, so be thinking of questions. Have those in mind for when we get to that portion of the call. Okay. Thanks for being with us here today. Nancie, the floor is yours.


Nancie G. Marzulla:  Thank you very much. It’s my pleasure to be here. So as just mentioned, we are here today to talk about a case that was argued this morning in the Supreme Court, U.S. Fish and Wildlife Service v. Sierra Club. This is a fascinating case with a number of really important issues.


And with us here today to talk in detail about the case and its implication is Damien Schiff. He is a Senior Attorney. I’m sure many of you on the call know Damien. He works at the Pacific Legal Foundation in Sacramento, California. He has decades of experience handling cases and being involved in cases involving complex property rights and environmental issues. Notably, Damien was counsel of record in Sackett v. EPA, a groundbreaking decision in which the Supreme Court upheld the rights of landowners to challenge Clean Water Act compliance orders issued by the EPA.


So Damien listened in on the argument today. And before I turn it over to him to give us the inside scope of what was argued and discussed today, I’ll give you just a brief thumbnail sketch of the case. Basically, the case involves a proposed regulation by EPA concerning water intakes used for cooling industrial facilities. And because the rulemaking involved the extraction of water from lakes or rivers or streams, EPA consulted with the Fish and Wildlife Service and the National Marine Fisheries Service under Section 7 of the ESA, the Endangered Species Act. And as a result of that consultation, the Agency sent back a jeopardy conclusion with proposed reasonable and prudent alternatives, which EPA then turned around and adopted in a new regulation.


Well, the Sierra Club then sent FWS, NMFS, and EPA FOIA requests asking for their documents regarding these Section 7 consultations. The agencies, however, refused to hand over the documents, arguing that they are exempt under FOIA’s deliberative process privilege. So Damien, could you describe for me, then, the ensuing litigation and tell us what issues were before the Supreme Court today?


Damien Schiff:  Thank you very much, Nancie, and thank you to The Federalist Society for hosting today’s teleforum. And before we get into the nuts and bolts of what was argued today, I think it’s appropriate to put the case in the context of the deliberative process privilege and where it came from. In a later written late in his life to Kentucky legislator William Barry, James Madison warned that a popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both.


Today, the High Court heard oral argument in Sierra Club. As Nancie mentioned, the case is mainly concerned about an exception to the general rule under the Freedom of Information Act that the public has a right to access government documents. But it also raises the larger policy question flagged in Madison’s famous missive I just quoted from of the extent to which keeping citizens in the dark about aspects of official decision-making is conducive to good government and the protection of liberty. Now, this deliberative process privilege allows the government in civil litigation to withhold documents that are pre-decisional and deliberative, that is documents that anti-date a final government ruling and which assisted the government decision-maker in reaching a final decision.


The main rationale for this privilege rests, as the Supreme Court has put it, on the, quote, “obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front-page news.” Now, the origins of the deliberative process privilege lie partly in the so-called English crown privilege, which exempted from disclosure things like names of informants in military reports. But although the American term deliberative process privilege is of recent vintage, the principle that some executive documents should be exempt from disclosure was employed early on in our country’s existence. For example, see President Washington’s exertion of privilege in response to congressional investigations about the St. Clair military expedition or the Jay Treaty.


But during the 19th Century most of the debates about the privilege’s application didn’t reach much below the president and his cabinet. Indeed, it wasn’t until the mid-20th Century that the federal judiciary made the privilege available to the Executive Branch generally. The seminal decision is not a Supreme Court decision but a 1958 ruling of the Court of Claims in a case called Kaiser Aluminum and Chemical Corporation v. United States.


This was an action for breach of a most favored purchaser contract. And in discovery, the plaintiff, Kaiser, sought a memorandum written by a subordinate staffer of the General Service Administration giving advice to the GSA’s liquidator of war assets concerning government policy on the sale of aluminum plants. In holding against disclosure of the memo, the Court, per then retired Justice Stanley Reed, ruled that all such executive documents reflecting advice on policy, quote, “of the kind that every head of an agency or department must rely upon for aid in determining a course of action or as a summary of an assistance research are presumptively privileged from disclosure.”


Relying in part on English precedent, Justice Reed defended the application of the privilege on the ground that, quote, “free and open comments on the advantages and disadvantages of the proposed course of government management would be adversely effected if a civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judgement properly chargeable to the responsible individual with power to decide an act.” Now, unlike Kaiser Aluminum, the dispute in Sierra Club does not arise from discovery demand in civil litigation but rather from an action to enforce FOIA. Enacted as part of the EPA in 1946, FOIA was overhauled in 1966 because Congress was concerned that the original version of the statute made it too easy for government officials to avoid having to disclose documents.


Nevertheless, Congress codified nine exemptions from the general rule of disclosure. Exemption 5, which is at issue in Sierra Club, authorizes the withholding of interagency or intra-agency memorandums or letters which would not be available by law to a party in litigation with the Agency. The exemption has been interpreted by the Supreme Court to incorporate a number of common law privileges, including the deliberative process privilege.


Now, the documents at issue in Sierra Club, as Nancie noted earlier, were created as part of consultation conducted under the Endangered Species Act. Pursuant to that act, federal agencies are required to consult with the Fish and Wildlife Service and the Fisheries Service to determine whether their proposed actions may jeopardize the continued existence of a protected terrestrial or marine species. At the end of this consultation, the Services produce what’s called a biological opinion, which includes the Agency’s assessment of the effects of the proposed action and any reasonable and prudent alternatives to the proposal that could avoid harm to the species or its habitat.


The Services also typically include what’s called an incidental take statement with the biological opinion. This statement immunizes federal employees and private parties from liability should harm to protected species inadvertently result through the action’s implementation. The dispute in Sierra Club, however, arises from a 2011 EPA proposed regulation under the Clean Water Act, which, as Nancie noted earlier, regulates water cooling apparatus for large industrial facilities.


Because these structures can harm aquatic organisms, including endangered ones, EPA sent its proposal to the Services for their review. By late December of 2013, the Services had prepared near final biological opinions, concluding that EPA’s proposal would result in jeopardy to protect its species. But at the last minute, the Services’ decision-makers concluded that revisions had to be made before sending those biological opinions over to EPA.


Shortly thereafter, EPA decided, based in part on excerpts of the draft opinion that the Services had already supplied it, to amend its original proposal. The draft opinions were then set aside, and new biological opinions were written to address EPA’s revised regulation. Both the revised opinions, which now reached a no jeopardy conclusion in contrast to the earlier versions, as well as the revised regulation, were formally adopted by the agencies in May of 2014. Shortly thereafter, Sierra Club and others petitioned for review of the EPA rule.


The Second Circuit upheld the rule while at the same time rejecting the challengers’ attempt to obtain the draft biological opinion as part of that litigation, citing the deliberative process privilege. At the same time as this merits litigation was going on, Sierra Club submitted a FOIA request for these draft biological opinions and related documents. When the agencies declined to disclose them, Sierra Club sued.


The district court ruled in Sierra Club’s favor, and on appeal, a divided panel of the Ninth Circuit affirmed in part, ruling two to one that the Services had to disclose the draft biological opinions and a few other documents. The panel majority reasoned that the original draft biological opinions, although they were never formally issued, were nevertheless the Agency’s, quote, “final word on EPA’s initial proposed rule” and, thus, were not pre-decisional or deliberative as applied to that initial proposal. As the majority explained, the documents, quote, do not contain line edits, marginal comments, or other written material that expose any internal Agency discussion about the jeopardy finding, nor do they contain any insertions or writings reflecting input from lower level employees.


The government then successfully convinced the Supreme Court to grant cert. And in the Supreme Court parties’ briefing, one will see that the dispute largely turns on the legal status, as well as the practical effects, of these draft biological opinions. Sierra Club contends that the opinions clearly represented the Services’ last word with respect to the then current EPA proposal’s effect on protected species and their habitat and that the opinion certainly had appreciable practical effects on EPA, given EPA’s subsequent decision to amend its proposed regulation once it got wind of where the Services were going with their biological opinions.


But the government counters that the draft opinions were never signed or formally approved the Services decision-makers. They were never sent into EPA, and they were never made public. Moreover, because they were never finalized, no legal significance ever attached to them. Hence, in the government’s view, the documents remained pre-decisional and deliberative. Now, today’s oral argument, in my view, reveals that the Court --


Nancie G. Marzulla:  Damien, could I interrupt you for just a second?


Damien Schiff:  Oh, sure. Sure. Go right ahead. I’m sorry.


Nancie G. Marzulla:  No, no. What was the issue the Supreme Court certified for review or -- issue or issues?


Damien Schiff:  I don’t actually have the question presented right in front of me, but the principle issue that the Court is addressing—I suppose it really is the single issue—is the scope of the deliberative process privilege in the -- as codified in the Freedom of Information Act. Well, just hold on for one moment actually. I call up to get the exact text -- “whether exemption 5 by incorporating the deliberative process privilege protects against compelled disclosure of a federal agency’s draft documents that were prepared as part of an ESA consultation and that concerned a proposed Agency action that was later modified in the consultation process.”


So that’s a good point to raise Nancie that built into the question presented is this issue of how draft is a draft. And this is a good segue to the oral argument because this is, I think, really the heart of the dispute between the parties upon which the Supreme Court focused its attention. As I was saying, the Court, in my view, based upon my listening to today’s oral argument, is, although sympathetic with the government -- is also, I think, concerned with the breadth of the rule that the government has offered to justify a win.


As Justice Kavanaugh observed in the preface to one of this questions, the Court doesn’t want to create a FOIA loophole of allowing government officials to stamp “draft,” quote/unquote, on all documents and ipso facto make them then exempt from disclosure. But I think the Court was also concerned about how the government’s rather broad rule of what’s considered exempt from disclosure would apply in the Endangered Species Act in particular. And this is in part because of an amicus brief that was submitted by a coalition of environmental groups in support of Sierra Club, which highlighted the fact that, of the thousands of consultations that have happened under the Endangered Species Act, only a handful have ever resulted in a, quote/unquote, “formal jeopardy opinion” being issued. Instead, what actually typically happens is that, as in this case, the Services will produce a, quote/unquote, “draft biological opinion.”


They will share that with the action agency. The action agency then, seeing the handwriting on the wall not wanting to go forward with a proposal if it’s going to mean that the agencies will conclude that it will jeopardize species and effectively put an end to the proposal, will then anticipate that result by then changing their original proposal, have the Services analyze the new proposal, and then have the Services conclude a no jeopardy opinion. So if in fact the government’s view of what’s disclosable is correct, that means that the public will never be able to obtain draft jeopardy opinions because, as typically happens, those draft jeopardy opinions are never finalized because the agencies do all that they can to avoid that result.


So I think the Court is suggesting something of a third way whereby not just final biological opinions but also some what you might call formal draft biological opinions would be subject to disclosure but not materials that precede such a draft opinion. And a good part of the questioning at today’s oral argument was trying to figure out, well, where do you draw the line between, quote/unquote, “formal draft biological opinions and truly drafts of drafts,” which is how the government characterized the documents at issue in this case?


Nancie G. Marzulla:  Damien, excuse me for interrupting you but did any of the justices focus on the fact that the agencies involved in the dispute were environmental issues that have authority under the Endangered Species Act? I raise that because, if the Ninth Circuit decision is upheld, it sort of gives the FWS and NMFS final veto power over any of these rulemakings. And we know that FWS and NMFS already have enormous power under the ESA. And I’m wondering if that could have been in the back of their minds or maybe discussed -- expressly discussed in the arguments, the fact that we’re talking about agencies that already wield enormous power.


Damien Schiff:  Yes, it did come up, particularly in this discussion of can you really characterize a document as a drafted document, given the practical effect that it obviously has on not just the consulting agency but also any private party applicant whose permit has triggered the need for the consultation in the first place. And I think that it might also reflect another amicus brief that was submitted by a coalition of industry groups that supported Sierra Club’s position here. And the reason for that support, I think, is that not just environmental groups but also private parties who are regulated -- either their land use or other activities are regulated by the endangered species act also are injured when they’re not able to find out what exactly is going on behind the agencies’ doors when these consultations are going on.


And so not having these draft biological opinions is a problem not just for environmental groups but also for those who are regulated by these same agencies. And as you point out, Nancie, the tremendous influence that they yield through this consultation process itself came up. In fact, it came up in a colloquy between the Sierra Club’s counsel and Justice Barrett. I believe this was one of her first or only second question that she’s asked. And she got at this very point as to when does a biological opinion that’s issued under the Endangered Species Act -- when does it really have, quote/unquote, “coercive effect?”


And that I think is really the nub of the legal question here because the Court, I think, is sympathetic to the idea that, if these documents have coercive effect on agencies or private parties, then they should be disclosable under FOIA even if they’re, quote/unquote, “drafts.” But if they are not coercive because they’re not yet finalized or because more work is still going on, then I think the Court is more sympathetic to the government’s view that they shouldn’t be disclosed. My prediction, though, is that the Court will rule for the government narrowly, tailoring its decision to the peculiar aspects of the ESA consultation process where you have this back and forth among agencies with different stages of draft documents without attempting, I think, to articulate a broader rule for distinguishing truly draft documents from de facto final decisions.


But before we go to questions, I do want to point out two things that might be overlooked in the commentary on this case. One is -- we’ve kind of already hinted at it -- is that I think this case highlights a serious shortcoming with the procedures that govern how the Fish and Wildlife Service and the Fisheries Service produce these biological opinions. As we were just saying, they’re not really opinions because they have this tremendous coercive effect -- that coercive effect because they typically come with the incidental take statement.


This incidental take statement operates like a permit so that if you follow the Services’ opinion’s direction, then if anything goes wrong while you’re implementing your project and you accidentally harm a species or destroy its habitat, you’ll be legally immune because of this incidental take statement. But if you ignore the opinion and its restrictions and go it on your own, although technically you’re legally free to do that, you can no longer enjoy the protection of that incidental take statement. And then you run the risk of significant civil and even criminal penalties.


So given that these are really coercive documents, you would think that there should be some sort of notice and comment process that precede their issuance. But remarkably, there’s none. There’s absolutely no opportunity for notice or comment on the biological opinions, and I think this case highlights the problem there.


But I think it also -- my second point is this case highlights, I think, in my view the shaky foundations of this deliberative process privilege generally because I think that the typical justification for the process -- which is, if we don’t allow this privilege, then we will not have full and frank discussion in private among government officials and the quality of government decision making will thereby suffer. And I think that that rationale really falters on what, frankly, is the absolute lack of any empirical data showing that government officials won’t engage in full and frank discussion in the absence of the privilege. Perhaps the most significant reason for that is that this privilege is not something that adheres in your lower level staffers.


So the idea is we want these lower level staffers to discuss freely with their superiors about proposed action and not be afraid about ending up on front-page news. But the problem is that these lower level staffers don’t possess the privilege. It’s the agency head at any given time that has the full authority whether to disclose documents or not. And so it seems a little odd to think that, “Oh, well, now they’ll speak freely because they know this privilege exists” when they have no way of guaranteeing that they can have that privilege enforced.


Nancie G. Marzulla:  That’s an excellent point, Damien, and I think that’s one that’s so often overlooked that the privilege isn’t available for assertion by anyone within the agency. It attaches only to the head of the agency or can be exercised only by the head of the agency. Did anyone talk about this in the arguments today, the notion of the chilling effect that a weakening of the deliberative process privilege might have on agency decision making?


Damien Schiff:  Yes, it did come up. Unfortunately from my view, it came up in the context of being a given. And thus, the questions from Justice Gorsuch, Justice Kavanagh, a little bit from Justice Breyer were about, assuming that this in fact is going to happen, how do we craft a rule that doesn’t cause that problem -- that doesn’t discourage free and full and frank discussion among government officials? So the other concern, of course, that came up is what kind of a rule -- this is a classic jurisprudential debate between should we have a bright line rule, or should we instead of a general standard with factors to be taken into account?


And the government certainly was arguing for a bright line rule. Sierra Club was arguing for a more nuanced approach. And there was some concern expressed by a number of justices as to finding the right standard.


But I do think that the Court will probably produce a rule that is good enough to resolve this case in the government’s favor but would not, I think, attempt to go much beyond the context of ESA consultation, in part because -- and this is maybe one point that might have been lost in the oral argument. It certainly didn’t come up -- is that this case was filed before Congress amended FOIA in 2016. Among other things, Congress in 2016 amended this deliberative process exemption under Exemption 5. And that amendment put the sunset date on the privilege such that the agencies can no longer claim deliberative process privilege for otherwise privileged documents that were created more than 25 years before the FOIA request was submitted.


And that, I think, in some respects represents a balancing between the desire to disclose public documents and the desire to not inhibit frank government decision making. But I think it does show that Congress, at least gradually now, is starting to realize that the deliberative process privilege has perhaps been over invoked and that, as a consequence, there are documents that should be disclosed that are not being disclosed.


Nancie G. Marzulla:  Do you foresee any dissenting opinions?


Damien Schiff:  I cannot sense from any of the questions anyone who was really fully behind Sierra Club. I think the closest would be the questions—based on their questions—from Justices Sotomayor and Kagan. But even there, I think they recognize that Sierra Club had a hard case here because you had in the record declarations from the agency decision-makers in this case who said -- under oath they said, “When we reviewed these documents that they want us to disclose now, we did not want to finalize them. We wanted to have our staffs within the Services do more work on them before we were prepared to release them to EPA.”


And I think they found -- Justices Kagan and Sotomayor found that to be a pretty bad fact for Sierra Club because it does seem then that you have a lot of evidence showing that, whatever practical effect these documents might have had on EPA, they certainly were not completed documents because the people who had the authority to make them final were not using that authority, in fact, wanted additional things done before they were prepared to make them final.


Nancie G. Marzulla:  So why do you think the Supreme Court granted cert to this case?


Damien Schiff:  Well, it may also be an even better question to ask why did the Solicitor General seek cert? I think undoubtedly it must be because the Services view this as a very important question, that they do conduct thousands and thousands of these consultations. And most of that documentation has not be subject to FOIA because, again, most of that documentation pertains to draft jeopardy opinions that never become final because, before they can become final, the agencies then change their proposal to avoid the final jeopardy conclusion. So it must be, I think -- for why the Solicitor General sought cert, it must be because the agencies here really view this as it would be a significant change to their FOIA practice on Section 7 consultation.


And as far as the Court granting cert, I think part of it, too, is that the rationale that the Ninth Circuit panel majority gave is not a very good one. And in fact, really, Sierra Club hasn’t actively defended on that rationale. Part of that rationale, again, was that, well, because these draft final biological opinions don’t have any redlines on them, because they seem to be, you know, very polished drafts and there are no comments from staff embedded in them that they’re basically -- they look like final documents.


And so that’s good enough to have them disclosable. And I think that rationale is certainly a lot broader than what Sierra Club has asked for. And that might have been part of the reason why the Supreme Court decided to grant cert.


Nancie G. Marzulla:  Great. I think we’re ready to open the floor to questions. Damien, do you agree?


Damien Schiff:  I agree.


Nick Marr:  Great. We’ll do that now, and we’ve got one in the queue already. So we’ll go to it now.


Caller 1:  Yes. I’d like to ask our presenter, given that these consultations also take place with respect to applications for various kinds of permits, Clean Water Act permits, wetlands permits and so forth that involve private parties, not just agency regulation-type occurrences, how do you think that this decision is going to impact an applicant who gets his permit denied and asks to see, well, why is it and is told, “Well, it’s because we received word from Fish and Wildlife that it was going to jeopardize some species, but you can’t see that document”?


Damien Schiff:  That is an excellent question and in fact came up today during the argument. I believe it was from Justice Breyer and maybe also from Justice Barrett that this consultation provision under the Endangered Species Act is not limited to discussions among agencies. It can also involve a, quote/unquote, applicant who is typically a private party that has a permit that a federal agency has the power to grant and that the permitting project may affect endangered species. So that triggers a consultation process.


The government conceded in this case that the Services’ current regulations give the permit applicant in such an example the right to obtain a draft biological opinion. And that concession, I think, was then used by the Court to explore the extent to which the government’s argument was going too far here because, if in fact a biological opinion must be presented to a private party, that means that at least in some circumstances these drafts are not subject to the Exemption 5 deliberative process privilege, which does not apply, by definition, to documents that are made available to non-agency entities. So if that’s true, then it seems to undercut a little bit the government’s view that what we need to have nondisclosure to encourage full and frank discussion because then it sounds like the government’s saying, “Well, we can only really assure top quality discussion for consultations that don’t involve private parties. But if they involve private parties, we have to provide them the drafts. So that means that we’re going to have very compromised discussion.”


So I think ultimately the distinction there between purely agency consultations and consultations involving applicants ultimately rebounds in the favor of Sierra Club here and I think, if anything, will result in perhaps an opinion from the Court that recognizes that, well, maybe final, quote, “draft biological opinions” are discoverable. But here, we actually don’t even have that. We accept the government’s characterization of these documents as drafts of drafts. And even a draft of a draft is not by right disclosable to an applicant in the Section 7 process. So we would be consistent there while also at the same time reversing the Ninth Circuit concluding that these drafts of drafts are disclosable.


Nick Marr:  Great. So Nancie, Damien, we don’t have any questions in the queue right now. Nancie, maybe you have some more questions for Damien, or you have anything to add?


Nancie G. Marzulla:  No, I think I have posed all my questions to Damien. I think we’ve stumped the panel, Damien.


Damien Schiff:  Well, if we have no further questions, then I would just again end by saying that I do think that the deliberative process privilege, both in terms of its assertion in FOIA as well as its assertion in normal civil litigation does need a reexamination, that the basis -- again, the rationale that we want to keep the public in the dark as the price of fostering better discussion among government decision-makers seems to run contrary, I think, to the better view that, frankly, the quality of government decision making will be enhanced by making the public fully aware of the process that leads to the decision taken. So ultimately, this is only something that Congress can fix because it’s been codified in FOIA. And although Congress has taken initial steps, as I mentioned earlier, in 2016 to begin to limit the scope of the privilege, that’s only a first step. And perhaps a narrow win here for the government might continue that trend by narrowing what can be considered a truly, quote, “draft document.”


Nancie G. Marzulla:  Damien, you know, the comments you’ve made here today calls to mind the statement at the top of the Washington Post newspaper, which is that democracy dies in darkness, which of course is an irony for the Washington Post to be saying that. But I think it is a principle that is fundamentally at stake in FOIA. And it’s a fascinating case. I think it’s a bit of a sleeper in terms of people realizing that there’s some really important policy issues wrapped up in what might look like a sort of plain vanilla, cut and dry FOIA case or even an Endangered Species Act case. But I think this is one we ought to keep a close eye on. And you really did an excellent job, Damien, in discussing all the issues. Thank you.


Damien Schiff:  Well, thank you, Nancie. I appreciate that. And again, I share your view that, although it seems like a sleeper case, I think the Court also recognizes that a broad rule that would incentivize government officials to simply characterize documents as draft and thereby avoid having to disclose them -- I think that would be pernicious precisely for the reason you mentioned with the Washington Post masthead, that we don’t want to have more government decision making happening in the dark. We want to have that to be the exception, not the rule. So I think that concern is going to guide -- however the opinion turns out for the Court, I think that’s going to guide the Court’s approach.


Nancie G. Marzulla:  Well, great. Thank you all for joining us today and thank you Federalist Society for making this teleforum possible.


Nick Marr:  Great. Thank you very much. On behalf of The Federalist Society, I want to thank you both for your time and expertise today and to our audience for calling in. And as always, we welcome your feedback by email at [email protected]. And be keeping an eye on your emails and our website for announcements about upcoming Teleforum calls. We have a number scheduled this week as oral arguments are beginning again. And we’ve got some announcements about our upcoming National Lawyers Convention, which is coming up here in a couple weeks. So be sure to check that out and register for that. Thank you all for joining us today. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at