Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice

• Decision Date: 31 January 2017
• Docket Number: No. 16-5110,16-5110
• Citation: 846 F.3d 1235
• Parties: CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Appellant v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

846 F.3d 1235

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Appellant

v.UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellees

No. 16-5110

United States Court of Appeals, District of Columbia Circuit.

Argued December 5, 2016

Decided January 31, 2017

Alan B. Morrison argued the cause for appellant. With him on the briefs was Adam J. Rappaport.

Scott L. Nelson, Washington, DC, and Rachel M. Clattenburg were on the brief for amicus curiae Public Citizen, Inc. in support of appellant.

Daniel Tenny, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Michael S. Raab, Attorney.

Before: Tatel and Wilkins, Circuit Judges, and Sentelle, Senior Circuit Judge.

Tatel, Circuit Judge:

Section 704 of the Administrative Procedure Act limits judicial review under that statute to agency actions "for which there is no other adequate remedy in a court." 5 U.S.C. § 704. Appellant filed suit under the APA to compel the Department of Justice's Office of Legal Counsel to meet its disclosure obligations under the "reading-room" provision of the Freedom of Information Act. 5 U.S.C. § 552(a)(2). The district court dismissed the case, concluding that appellant has an adequate remedy under FOIA. For the reasons set forth below, we agree and affirm.

I.

"For decades, [the Office of Legal Counsel (OLC) ] has been the most significant centralized source of legal advice within the Executive Branch." Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel , 110 Colum. L. Rev. 1448, 1451 (2010). Indeed, executive-branch officials seek OLC's opinion on some of the weightiest matters in our public life: from the president's authority to direct the use of military force without congressional approval, to the standards governing military interrogation of "alien unlawful combatants," to the president's power to institute a blockade of Cuba. Office of Legal Counsel, Authority to Use Military Force in Libya (Apr. 1, 2011); Office of Legal Counsel, Military Interrogation of Alien Unlawful Combatants Held Outside the United States (Mar. 14, 2003); Office of Legal Counsel, Authority of the President to Blockade Cuba (Jan. 25, 1961).

OLC's authority to render advice is, in some sense, nearly as old as the Republic itself. In the Judiciary Act of 1789, Congress authorized the Attorney General "to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments." Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 93; see 28 U.S.C. §§ 511 -513 (codified as amended). The Attorney General has, in turn, delegated to OLC authority to "[p]repar[e] the formal opinions of the Attorney General; render[ ] informal opinions and legal advice to the various agencies of the Government; and assist[ ] the Attorney General in the performance of his functions as legal adviser to the President." 28 C.F.R. § 0.25 ; see Luther A. Huston, The Department of Justice 61 (1967) (recounting the formation of OLC).

OLC has a "longstanding internal process in place for regular consideration" of whether to share "significant opinions" with the public. Memorandum from David J. Barron, Acting Assistant Attorney General, to Attorneys of the Office, Best Practices for OLC Legal Advice and Written Opinions 5 (July 16, 2010). Attorneys who have worked on or reviewed an opinion give initial recommendations about whether publication is appropriate that are "forwarded to an internal publication review committee." Id. "If the committee makes a preliminary judgment that the opinion should be published, the opinion is circulated to the requesting Executive Branch official or agency and any other agencies that have interests that might be affected by publication, to solicit their views" before the committee renders a "final judgment." Id. In making this determination, OLC "operates from the presumption that it should make its significant opinions fully and promptly available." Id. An opinion is deemed significant if, for example, it possesses "potential importance ... to other agencies or officials in the Executive Branch"; there is a "likelihood that similar questions may arise in the future"; it is of "historical importance"; or it has potential significance to OLC's "overall jurisprudence." Id. Other factors militate against disclosure, such as when publication would "reveal classified or other sensitive information relating to national security"; "interfere with federal law enforcement efforts"; undermine "internal Executive Branch deliberative processes" or "the confidentiality of information covered by the attorney-client relationship between OLC and other executive offices"; or result in the disclosure of documents "that are of little interest to the public." Id. at 5–6.

Unsatisfied that these procedures provide the public with the access the Freedom of Information Act demands, appellant Citizens for Responsibility and Ethics in Washington (CREW) initiated this litigation. CREW is a nonprofit corporation whose organizational mission is "to protect[ ] the rights of citizens to be informed about the activities of government officials." By its own account, CREW is no stranger to using FOIA to obtain and disseminate information "about government officials and their actions," including OLC. For instance, before commencing this action it filed a separate FOIA request—not at issue here—"for all [OLC] opinions discussing the authority of the president as well as any executive branch agency or agency component to conduct domestic and foreign surveillance."

Before filing suit, CREW sent a letter to OLC requesting that it comply with its obligations under FOIA section 552(a)(2) —the so-called "reading-room" provision—which requires agencies to "make available for public inspection in an electronic format" certain records, including "final opinions ... made in the adjudication of cases" and "those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register." Letter to Assistant Attorney General Virginia A. Seitz from Anne L. Weismann (July 3, 2013); 5 U.S.C. § 552(a)(2). CREW argued that OLC opinions are subject to disclosure under the reading-room provision because they "function as binding law on the executive branch." Letter to Assistant Attorney General Seitz.

In response, OLC explained that, in its view, FOIA exempts OLC opinions from disclosure because they are "ordinarily covered by [FOIA's] attorney-client and deliberative process privileges" and, "as confidential and predecisional legal advice, ... constitute neither ‘final opinions ... made in the adjudication of cases' nor ‘statements of policy and interpretations which have been adopted by the agency.’ " Letter to Anne L. Weismann from Deputy Assistant Attorney General John E. Bies (Aug. 20, 2013). "Nevertheless," OLC stated, it "make[s] an individualized, case-by-case determination with respect to whether each opinion ... is appropriate for publication" and, in response to FOIA requests seeking specific records, "consider[s] whether to waive applicable privileges and release the opinion as a matter of administrative discretion." Id.

Shortly after receiving OLC's response, CREW commenced this action against DOJ and certain DOJ officials. The amended complaint alleges a claim under the APA, 5 U.S.C. § 702, challenging as arbitrary, capricious, and contrary to law OLC's purported failure to meets its disclosure obligations under FOIA's reading-room requirements, 5 U.S.C. § 552(a)(2). As its primary form of relief, CREW seeks an injunction directing OLC to disclose all documents subject to that provision. The injunction would have four features: (1) it would apply prospectively, that is, to documents not yet created; (2) it would impose an affirmative obligation to disclose, that is, OLC would disclose documents regardless of whether someone specifically requests a given document; (3) it would mandate that OLC make documents available to the public , as opposed to just CREW; and (4) it would require OLC to make available to the public an index of all such documents.

DOJ moved to dismiss the amended complaint on multiple grounds, and on March 7, 2016, the district court granted that motion. As the court explained, because CREW challenges OLC's actions under the APA, "it must satisfy the APA's predicate requirements for bringing suit," namely, that "there is no other adequate remedy" available. Citizens for Responsibility and Ethics in Washington v. DOJ , 164 F.Supp.3d 145, 151 (D.D.C. 2016) ; 5 U.S.C. § 704. The district court concluded that FOIA provides an adequate remedy, thus barring CREW's APA claim.

CREW now appeals. Our review is de novo .

II.

FOIA imposes on federal agencies both reactive and affirmative obligations to make information available to the public. In the former category, the act's most familiar provision, section 552(a)(3) provides that agencies must "make ... records promptly available" in response to specific requests. 5 U.S.C. § 552(a)(3)(A). In the latter category are two distinct affirmative disclosure obligations. One, section 552(a)(1), requires agencies to "publish in the Federal Register" certain records, such as "substantive rules of general applicability adopted as authorized by law." Id. §§ 552(a)(1), (a)(1)(d). The other, section 552(a)(2) —the reading-room provision at issue in this case—requires agencies to "make [certain records] available for public inspection in an electronic format[,]" including "statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register." Id. §§ 552(a)(2), (a)(2)(B).

To breathe life into these obligations, FOIA provides for judicial review. Section 552(a)(4)(B) grants district courts jurisdiction to...