970 F.3d 200 (2nd Cir. 2020), 18-2819, Whitaker v. Department of Commerce

Docket Nº:18-2819
Citation:970 F.3d 200
Opinion Judge:John M. Walker, Jr., Circuit Judge.
Party Name:Stephen WHITAKER, David Gram, and All Similarly Situated Parties, Plaintiffs-Appellants, v. DEPARTMENT OF COMMERCE, Defendant-Appellee.
Attorney:Kelly McClanahan, National Security Counselors, Rockville, MD, for Plaintiffs-Appellants. Laura E. Myron, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice ( Joseph H. Hunt, Mark B. Stern, on the brief), for Christina E. Nolan, United States Attorney, Washington, D.C., for Def...
Judge Panel:Before: Walker, Lohier, and Carney, Circuit Judges.
Case Date:August 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 200

970 F.3d 200 (2nd Cir. 2020)

Stephen WHITAKER, David Gram, and All Similarly Situated Parties, Plaintiffs-Appellants,

v.

DEPARTMENT OF COMMERCE, Defendant-Appellee.

No. 18-2819

United States Court of Appeals, Second Circuit

August 14, 2020

Argued: September 3, 2019.

Page 201

Appeal from the United States District Court for the District of Vermont.

Page 202

Kelly McClanahan, National Security Counselors, Rockville, MD, for Plaintiffs-Appellants.

Laura E. Myron, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice ( Joseph H. Hunt, Mark B. Stern, on the brief), for Christina E. Nolan, United States Attorney, Washington, D.C., for Defendant-Appellee.

Daniel W. Wolff, Amanda Shafer Berman, Crowell & Moring LLP, Washington, D.C., for amicus curiae AT& T Corporation.

Before: Walker, Lohier, and Carney, Circuit Judges.

John M. Walker, Jr., Circuit Judge.

This case arises from plaintiffs' Freedom of Information Act (FOIA) requests for records from the Department of Commerce (DOC); the National Telecommunications and Information Administration (NTIA), an agency within the DOC; and the First Responder Network Authority (FirstNet), an independent entity within the NTIA. Plaintiffs appeal from a decision of the United States District Court for the District of Vermont (Crawford, J. ) dismissing their claims in part and granting summary judgment for defendant in part. We hold that the district court did not err in concluding that (i) FirstNet is not subject to FOIA and that (ii) an agency need not search for records if it has reasonably determined that a search would be futile. We therefore AFFIRM.

BACKGROUND2

Plaintiffs' FOIA requests concerned the operations of FirstNet. FirstNet was created by Congress in 2012 at the recommendation of the 9/11 Commission to oversee the development of a National Public Safety Broadband Network (NPSBN) for first responders. On March 30, 2017, following FirstNet's request for proposals to

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build and operate the NPSBN, the bid was awarded to AT& T. AT& T and FirstNet then built an online system called the State Plans Portal (the "Portal") to fulfill FirstNet's statutory obligation to inform state governments about AT& T's winning proposal so that each state could make an informed decision about whether to opt into the national network or receive federal funding to create its own alternative network.3 On June 19, 2017, FirstNet released plans for the NPSBN through the Portal. State governments had 45 days to review the plans and provide any feedback. On September 29, 2017, a 90-day period began during which states were required either to opt in or out of the national network. That period ended on December 28, 2017.

Between September 1 and October 5, 2017, plaintiffs submitted six FOIA requests. The first three requests, submitted to FirstNet, the NTIA, and the DOC on September 1, sought user comments submitted to the Portal, communications that the agencies considered to be agreements from states to opt into the national network, and any contracts, agreements, and memoranda of understanding with AT& T. The fourth and fifth requests, submitted to FirstNet, the NTIA, and the DOC on September 25, sought copies of the plans provided to the states and related correspondence and records about the Portal's terms of use. The sixth request, submitted to FirstNet and the NTIA on October 5, sought correspondence from the states affirmatively opting out of the national network.

FirstNet responded to each request with a letter stating that, pursuant to a provision of its enabling statute, 47 U.S.C. § 1426(d)(2), it was exempt from FOIA and therefore had not conducted a search for responsive documents. In response to the September 25 requests, the NTIA produced five unredacted documents concerning the Portal's terms of use. The NTIA responded to all other requests with letters stating that any responsive records would be FirstNet records, not NTIA records, and therefore that it would transfer the requests to FirstNet for possible discretionary disclosure. The DOC responded to each request with a letter stating the same.4

On October 6, 2017, plaintiffs commenced the present litigation, alleging eighteen causes of action. Plaintiffs alleged that FirstNet (Counts 1-5), the NTIA (Counts 6-10), and the DOC (Counts 11-15) improperly failed to search for and to produce records in violation of FOIA. Count 16 alleges that, contrary to FirstNet's interpretation, 47 U.S.C. § 1426(d)(2) does not exempt FirstNet from FOIA and seeks declaratory and injunctive relief. Count 17 alleges that the NTIA and the DOC have a policy or practice, in violation of FOIA, of referring to FirstNet all FOIA requests related to FirstNet. Count 18 alleges that the DOC failed to conduct an appropriate privacy impact assessment, as required by § 208 of the E-Government Act of 2002,5 regarding personal information gathered by FirstNet for the Portal and for the NPSBN. Count 18 seeks an injunction barring FirstNet from collecting

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personal information until a proper assessment is conducted.

The district court dismissed Counts 1-5 and 16 on the basis that a provision of FirstNet's enabling statute, 47 U.S.C. § 1426(d)(2), exempts FirstNet from FOIA. The district court also granted defendant's motion for summary judgment on Counts 6-15 and 17 because plaintiffs did not introduce evidence that created a genuine dispute of material fact as to whether the NTIA and the DOC complied with FOIA (Counts 6-15) or whether those agencies had a policy or practice of referring FOIA requests to FirstNet (Count 17). On Count 18, the district court dismissed plaintiffs' claims as unripe to the extent that they concerned the NPSBN because that system did not yet exist, and it granted summary judgment for defendant to the extent that the claim concerned the Portal.6 This appeal followed.

DISCUSSION

On appeal, plaintiffs argue that the district court erred by concluding that (i) FirstNet is not subject to FOIA; (ii) the DOC and NTIA's decisions not to search for responsive records and to refer plaintiffs' requests to FirstNet were lawful; and (iii) plaintiffs lack standing to challenge defendant's compliance with § 208 of the E-Government Act of 2002 and that Count 18 was not ripe to the extent that it concerned the NPSBN.

We review the grant of both a motion to dismiss[7] and a motion for summary judgment8 de novo.

A. FirstNet is exempt from FOIA.

The dismissal of Counts 1-5 and 16 on the basis that FirstNet is exempt from FOIA turns on the statutory interpretation of a provision of FirstNet's enabling statute, 47 U.S.C. § 1426(d)(2). That provision states, in relevant part: (d) ... Any action taken or decisions made by the First Responder Network Authority shall be exempt from the requirements of—

...

(2) chapter 5 of title 5 (commonly referred to as the Administrative Procedure[] Act); ...

Plaintiffs argue that, although FOIA is codified at 5 U.S.C. § 552, within chapter 5 of title 5, § 1426(d)(2) does not exempt FirstNet from FOIA because FOIA is "not commonly referred to as the Administrative Procedure[] Act" (APA).9 Defendant, in turn, contends that the "commonly referred to" language is simply a parenthetical reminder that does not change the plain meaning of the text exempting FirstNet from the requirements of chapter 5 of title 5.

We agree with defendant. For any statutory interpretation question, we "begin with the plain language, giving all undefined terms their ordinary meaning while attempting to ascertain how a reasonable reader would understand the statutory text, considered as a whole."[10] Here, the language of § 1426(d)(2) is unambiguous: FirstNet "shall be exempt from the requirements of ... chapter 5 of title 5." It

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is true, as plaintiffs argue, that the term "APA" is commonly used to refer to that statute's provisions on rulemaking and judicial review of agency action, rather than to the subset of provisions enacted as part of FOIA. As the district court correctly observed, however, that common usage does not negate that "FOIA is codified in company with the more familiar provisions of the APA within Title 5, Chapter 5."11

Although the plain meaning of § 1426(d)(2) is sufficient to end our inquiry,12 we note that the statutory history of the APA supports our conclusion that FirstNet is exempt from FOIA. To begin, although the term "APA" is not commonly used to refer to FOIA, the Supreme Court has explained that "[t]he statute known as the FOIA is actually a part of the Administrative Procedure Act."13 The location of FOIA within the APA was deliberate. Even before Congress enacted FOIA in 1966, the APA contained a "Public Information" provision, § 3,14 that required agencies to publish any rules, opinions, and orders that affected the public's rights and obligations.15 FOIA was enacted expressly "[t]o amend section 3 of the Administrative Procedure Act ... to clarify and protect the right of the public to information."16 In 1967, shortly before FOIA took effect, Congress moved the provisions that comprise FOIA from 5 U.S.C. § 1002 to their current location within the codified version of the APA at 5 U.S.C. § 552.17

Finally, we reject plaintiffs' argument that the OPEN FOIA Act of 2009,18 which amended 5 U.S.C. § 552(b)(3), invalidates statutory FOIA exemptions enacted after 2009 that do not specifically cite subsection (b)(3)(B) of § 552.19 Section 552(b)(3), known as FOIA Exemption 3, applies to records "specifically exempted from disclosure by statute" when the statute "(i) requires

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that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or "(ii) establishes particular...

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