Citizens for Resp. in Wash. v. Office of Admin.

• Decision Date: 19 May 2009
• Docket Number: No. 08-5188.,08-5188.
• Parties: CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Appellant v. OFFICE OF ADMINISTRATION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

566 F.3d 219

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Appellant v. OFFICE OF ADMINISTRATION, Appellee.

No. 08-5188.

United States Court of Appeals, District of Columbia Circuit.

Argued November 14, 2008.

Decided May 19, 2009.

Appeal from the United States District Court for the District of Columbia (No. 1:07-cv-00964).

Anne L. Weismann argued the cause for appellant. With her on the briefs was Melanie T. Sloan.

Paul J. Orfanedes, Dale L. Wilcox, and James F. Peterson were on the brief for amicus curiae Judicial Watch, Inc., in support of appellant.

Thomas M. Bondy, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Gregory G. Katsas, Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Mark B. Stern, Attorney. Mark R. Freeman and Michael S. Raab, Attorneys, and R. Craig Lawrence, Assistant U.S. Attorney, entered appearances.

Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

This is the latest in a line of cases in which we are asked to decide whether a unit within the Executive Office of the President is covered by the Freedom of Information Act, 5 U.S.C. § 552 (2006). In this case, we conclude that the Office of Administration is not because it performs only operational and administrative tasks in support of the President and his staff and therefore, under our precedent, lacks substantial independent authority.

I.

Citizens for Responsibility and Ethics in Washington (CREW) alleges that the Office of Administration (OA) discovered in October 2005 that entities in the Executive Office of the President (EOP) had lost millions of White House e-mails. In April 2007, CREW made a FOIA request of OA asking for information about the missing e-mails. CREW sought records about the EOP's e-mail management system, reports analyzing potential problems with the system, records of retained e-mails and possibly missing ones, documents discussing plans to find the missing e-mails, and proposals to institute a new e-mail record system. OA agreed to produce the records but asked CREW to either limit the scope of the request or set a new timetable, protesting that it could not meet FOIA's timeframe for expedited requests given the broad scope of the inquiry. CREW responded that its request was not so broad as OA supposed and held fast to its demand that the documents be produced within FOIA's time limits. When the deadline passed and OA had not turned over the records or even provided an anticipated date for doing so, CREW filed this action in May 2007.

In June 2007, the parties agreed to a timeline for producing the records, but within weeks OA changed course and told CREW, for the first time in this dispute, that it is not covered by FOIA because it provides administrative support and services directly to the President and the staff in the EOP, putting it outside FOIA's definition of "agency." Even so, OA produced some of the records, but only, in its own words, "as a matter of administrative discretion." Letter from Carol Ehrlich, Freedom of Information Act Officer, Office of Admin., to Anne Weismann, CREW (June 21, 2007). OA refused to turn over the bulk of the potentially responsive records—more than 3000 pages.

In August 2007, OA took its argument to the district court and filed a motion for judgment on the pleadings. CREW opposed the motion, asserting, among other things, that discovery was needed on the jurisdictional question whether OA is covered by FOIA. The district court denied OA's motion without prejudice and allowed CREW to conduct limited jurisdictional discovery to explore "the authority delegated to [OA] in its charter documents and any functions that OA in fact carries out." Citizens for Responsibility & Ethics in Wash. v. Office of Admin., No. 07-964, at 6 (D.D.C. Feb. 11, 2008) (order denying motion for judgment and directing discovery). The court ordered discovery on whether "OA acts with the type of substantial independent authority that has been found sufficient to make" other EOP units "subject to FOIA." Id. at 5. OA produced more than 1300 pages of records about its responsibilities, provided a sworn declaration by its general counsel, and submitted its director to a deposition.

Following discovery, the district court granted OA's motion to dismiss CREW's complaint for lack of subject matter jurisdiction, see FED.R.CIV.P. 12(b)(1), concluding that OA is not an agency under FOIA because it "lacks the type of substantial independent authority" this court "has found indicative of agency status for other EOP components." Citizens for Responsibility & Ethics in Wash. v. Office of Admin., 559 F.Supp.2d 9, 21 (D.D.C.2008). For the same reason, the district court held in the alternative that CREW had failed to state a claim for relief, see FED. R.CIV.P. 12(b)(6). On CREW's motion for a stay pending appeal, the court ordered OA to preserve and keep in its control any records that might be responsive to CREW's FOIA request.

CREW appeals the district court's dismissal of the complaint and the limits placed on the scope of jurisdictional discovery. We have jurisdiction under 28 U.S.C. § 1291 (2006). We review de novo the district court's grant of OA's motion to dismiss. See Nat'l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1432 (D.C.Cir.1995). We review the district court's limits on discovery for abuse of discretion. See Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 737 (D.C.Cir. 2007).

II.

Congress enacted the Freedom of Information Act in 1966 to provide public access to certain categories of government records. The Act strives "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Described in its most general terms, FOIA requires covered federal entities to disclose information to the public upon reasonable request, see 5 U.S.C. § 552(a), unless the information falls within the statute's exemptions, see id. § 552(b).

By its terms, FOIA applies only to an "agency," and the key inquiry of this appeal is whether the Office of Administration is an agency under the Act. In the original statute, "agency" was defined broadly as any "authority of the Government of the United States...." Administrative Procedure Act, Pub.L. No. 89-554, § 551(1), 80 Stat. 378, 381 (1966) (codified as amended at 5 U.S.C. § 551(1)). In 1974, Congress amended the definition of "agency" to include, more specifically, "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552(f)(1).¹ Although the 1974 amendments expressly include the EOP within the definition of "agency," the Supreme Court relied upon their legislative history to hold that FOIA does not extend to "the President's immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President," Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (quoting H.R. REP. NO. 93-1380, at 15 (1974) (Conf.Rep.)). The Supreme Court's use of FOIA's legislative history as an interpretive tool has given rise to several tests for determining whether an EOP unit is subject to FOIA. These tests have asked, variously, "whether the entity exercises substantial independent authority," Armstrong v. Executive Office of the President, 90 F.3d 553, 558 (D.C.Cir.1996) (internal quotation mark omitted), "whether ... the entity's sole function is to advise and assist the President," id. (internal quotation mark omitted), and in an effort to harmonize these tests, "how close operationally the group is to the President," "whether it has a self-contained structure," and "the nature of its delegat[ed]" authority, Meyer v. Bush, 981 F.2d 1288, 1293 (D.C.Cir. 1993).

However the test has been stated, common to every case in which we have held that an EOP unit is subject to FOIA has been a finding that the entity in question "wielded substantial authority independently of the President." Sweetland v Walters, 60 F.3d 852, 854 (D.C.Cir.1995) (per curiam). In Soucie v. David, we concluded that the Office of Science and Technology (OST) is an agency covered by FOIA because it has independent authority to evaluate federal scientific research programs, initiate and fund research projects, and award scholarships. 448 F.2d 1067, 1073-75 (D.C.Cir.1971). Similarly, we determined that the Office of Management and Budget (OMB) exercises substantial independent authority because it has a statutory duty to prepare the annual federal budget, which aids both Congress and the President. See Sierra Club v. Andrus, 581 F.2d 895, 902 (D.C.Cir.1978). We noted that "Congress signified the importance of OMB's power and function, over and above its role as presidential advisor, when it provided ... for Senate confirmation of the Director and Deputy Director of OMB." Id. We also held that the Council on Environmental Quality (CEQ) comes within FOIA because it "coordinate[s] federal programs related to environmental quality[,] ... issue[s] guidelines to federal agencies for the preparation of environmental impact statements," and "issue[s] regulations to federal agencies for implementing all of the procedural provisions of [the National Environmental Policy Act]." Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1262 (D.C.Cir.1980).

By the same token, we have consistently refused to extend FOIA to an EOP unit that lacks substantial independent authority. We held that the Council of Economic Advisors (CEA) was not covered by FOIA...