Baker & Hostetler Llp v. U.S. Dept. of Commerce

• Decision Date: 22 December 2006
• Docket Number: No. 05-5185.,05-5185.
• Citation: 473 F.3d 312
• Parties: BAKER & HOSTETLER LLP, Appellant v. UNITED STATES DEPARTMENT OF COMMERCE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

473 F.3d 312

BAKER & HOSTETLER LLP, Appellant v. UNITED STATES DEPARTMENT OF COMMERCE, Appellee.

No. 05-5185.

United States Court of Appeals, District of Columbia Circuit.

Argued September 14, 2006.

Decided December 22, 2006.

COPYRIGHT MATERIAL OMITTED

Appeals from the United States District Court for the District of Columbia (No. 02cv02522).

Mark A. Cymrot argued the cause for appellant. With him on the briefs were Elliot J. Feldman and Michael S. Snarr.

Claire M. Whitaker, Assistant U.S. Attorney, U.S. Attorney's Office, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: HENDERSON, GARLAND and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH in which Circuit Judge GARLAND joins and Circuit Judge HENDERSON joins as to Parts I-IV.

Opinion dissenting in part filed by Circuit Judge HENDERSON.

KAVANAUGH, Circuit Judge.

This Freedom of Information Act appeal is a footnote to the long trade dispute in which the United States and American softwood lumber companies have raised complaints about alleged unfair trade practices by the Canadian Government and Canadian softwood lumber exporters. The United States and Canada recently settled the trade disagreement, but this FOIA case lives on.

In 2002, the Department of Commerce imposed duties on imports of Canadian softwood lumber to the United States (duties that have since been rescinded as a result of the recent bilateral settlement). Later in 2002, the law firm Baker Hostetler, which represents Canadian softwood lumber companies, filed requests and a lawsuit under the Freedom of Information Act to obtain documents from the Department of Commerce related to the Department's investigation of Canadian softwood lumber imports. At issue in this appeal are 17 third-party letters that the Department had received from American lumber companies; the Department claimed FOIA Exemption 4, which covers confidential commercial information provided by outside parties to the Government. Also at issue are 51 sets of internal Department notes; the Department claimed FOIA Exemption 5, which applies to privileged government documents. The District Court concluded that the Department properly withheld the documents under those FOIA exemptions. Applying settled legal principles to the unusual facts of this case, we affirm the District Court's judgment with respect to the 17 third-party letters, we affirm with respect to one of the 51 sets of notes, and we reverse and remand for further proceedings with respect to 50 of the 51 sets of notes.

The Department has provided Baker Hostetler numerous other softwood-lumber-related documents that are not at issue on appeal. Because of its success in obtaining those documents, the firm argues it is a "complainant" that "substantially prevailed" in the overall FOIA litigation — meaning that it may receive attorney's fees from the Department under FOIA. See 5 U.S.C. § 552(a)(4)(E). The District Court denied Baker Hostetler's fee request, reasoning that the law firm is representing itself and thus is ineligible for fees. The plain language of the FOIA attorney's fees provision does not contain such an exception, however, and the Supreme Court has stated that an organization remains eligible for attorney's fees even when it represents itself in litigation. See Kay v. Ehrler, 499 U.S. 432, 436 n. 7, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991). Two other Courts of Appeals have interpreted Kay to allow fees for a law firm representing itself. We agree with those courts and therefore reverse and remand for further proceedings on the attorney's fees issue; on remand, the District Court will determine whether Baker Hostetler "substantially prevailed" and is entitled to fees.

I

1. In the Tariff Act of 1930, Congress authorized the Department of Commerce to investigate (i) imports to the United States that are subsidized by foreign governments and (ii) dumping by foreign importers, which occurs when foreign companies sell their products in the United States at prices lower than in other markets. Pub.L. No. 71-361, 46 Stat. 590 (codified as amended at 19 U.S.C. §§ 1202 et seq.); see 19 U.S.C. §§ 1671(a), 1671a, 1673, 1673a. To counteract such trade practices by foreign governments and companies, the Department may impose countervailing and antidumping duties on goods imported into the United States. Id. §§ 1671d, 1673d. If duties are imposed, the affected foreign company may challenge the duties by seeking judicial review in the Court of International Trade. Id. § 1516a(a).

During the course of an investigation of subsidies to or dumping by foreign importers, the Department must maintain a public record of certain meetings between Department officials and outside parties (those are known as "ex parte meetings"). See id. § 1677f(a)(3); Department's Br. at 10 (Act requires Department to "create for the public record memoranda that recount" certain ex parte meetings). If the meeting is an ex parte meeting covered by the statute, the Department must list: the identity of persons present at the meeting; the date, time, and place of the meeting; and a summary of the matters discussed. 19 U.S.C. § 1677f(a)(3). By regulation, the Department keeps this public record in its Central Records Unit. See 19 C.F.R. § 351.104(b) (2006).

In any lawsuit challenging the imposition of duties, the Court of International Trade bases its review on the full official record assembled during the investigation. See 19 U.S.C. § 1516a(b)(1)(B)(i), 1516a(b)(2)(A); see also 19 C.F.R. § 351.104(a)(1) ("For purposes of [19 U.S.C. § 1516a(b)(2)], the record is the official record of each segment of the proceeding."). That record includes "a copy of all information presented to or obtained by the Secretary, the administering authority, or the [International Trade] Commission during the course of the administrative proceeding ...." 19 U.S.C. § 1516a(b)(2)(A)(i). However, "[t]he confidential or privileged status accorded to any documents, comments, or information shall be preserved in any action" challenging an antidumping or countervailing duty determination, although "the court may examine, in camera, the confidential or privileged material, and may disclose such material under such terms and conditions as it may order." Id. § 1516a(b)(2)(B).

2. In early 2002, after an investigation, the Department of Commerce announced its decision to impose duties on imports of Canadian softwood lumber. The law firm Baker Hostetler, which represents Canadian softwood lumber companies, then submitted two Freedom of Information Act requests for a variety of Department of Commerce documents related to the investigation.

The Department turned over a large number of responsive records, but it withheld some that it deemed to fall within FOIA's exemptions. As relevant here, the parties' disagreement concerned two specific groups of withheld records: 17 third-party letters sent to the Department by a representative of American lumber companies; and 51 sets of internal notes of meetings between Department officials and outsiders.

As to the 17 third-party letters, the Department invoked FOIA Exemption 4, which protects "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). Baker Hostetler argued that Exemption 4 did not apply because the letters were not "commercial" within the meaning of FOIA. It also maintained that the letters were not "confidential" within the meaning of Exemption 4 because the Tariff Act requires the Department to include letters submitted in connection with the investigation in the official record assembled for judicial review. See 19 U.S.C. § 1516a(b)(2)(A). The District Court determined that the letters were properly withheld. The court concluded that the letters contain confidential commercial information within the meaning of Exemption 4 and were submitted in connection with bilateral trade negotiations — not in connection with the Department's investigation of the Canadian companies — and thus were not subject to the Tariff Act's official record provision.

As to the 51 sets of meeting notes, the Department contended that they were protected by FOIA Exemption 5, which covers "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). That exemption incorporates the deliberative process component of executive privilege and protects agency documents that are pre-decisional and deliberative. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.Cir.2006). Baker Hostetler argued, however, that the Tariff Act's public record requirement mandates disclosure of certain information from the Department's "ex parte meetings" with outsiders and that the meetings described in the 51 sets of notes were covered by that statutory requirement. See 19 U.S.C. § 1677f(a)(3). The Department responded that the meetings reflected in 50 of the 51 sets of notes were not covered by the statutory definition. In relevant part, the District Court agreed with the Department's position that the meetings in question were not "ex parte meetings" as defined by the statute; the court concluded that the notes therefore need not be disclosed.

The Department advanced a different rationale for withholding one set of notes taken by a senior Department official, Bernard Carreau, during a telephone call with a U.S. trade association. The Department argued that the Tariff Act's public record requirement did not apply to those notes because the telephone call concerned the overall trade settlement between the United States and Canada rather than the antidumping/countervailing duty investigation. Based on its in camera...