Better Government Ass'n v. Department of State
| Citation | 250 U.S.App.D.C. 424,780 F.2d 86 |
| Decision Date | 03 January 1986 |
| Docket Number | 84-5928,Nos. 84-5723,s. 84-5723 |
| Parties | , 250 U.S.App.D.C. 424, 16 Envtl. L. Rep. 20,403 BETTER GOVERNMENT ASSOCIATION, Appellant, v. DEPARTMENT OF STATE, et al. NATIONAL WILDLIFE FEDERATION, et al., Appellants, v. UNITED STATES DEPARTMENT OF INTERIOR, et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 83-02298 and 83-03586).
Eric R. Glitzenstein, with whom Alan B. Morrison and Cornish F. Hitchcock, Washington, D.C., were on brief, for appellant in No. 84-5723.
John Bonine, Eugene, Or., for appellant in No. 84-5928. Michael Axline, Eugene, Or., was on brief, for appellant in No. 84-5928.
Deborah Ruth Kant, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellees in Nos. 84-5723 and 84-5928.
Before WRIGHT and EDWARDS, Circuit Judges, and DAVIS, * Circuit Judge, United States Court of Appeals for the Federal Circuit.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
In these consolidated cases, the appellants, the Better Government Association ("BGA") and the National Wildlife Federation ("NWF"), challenge the validity of a set of guidelines promulgated by the Department of Justice ("DOJ"). These guidelines are utilized by the appellees, the Department of State ("State") and the Department of the Interior ("Interior"), 1 to determine whether an individual or organization requesting information under the Freedom of Information Act 2 ("FOIA") is entitled to a waiver of search and copying fees. NWF also takes exception to Interior's utilization of an allegedly illegal regulation governing its treatment of FOIA fee waiver requests, 3 and its failure to adopt regulations, allegedly mandated by FOIA, setting forth specific criteria to be applied in fee waiver decisions.
Both BGA and NWF incurred administrative denials of FOIA fee waiver requests pursuant to the guidelines and regulation at issue, and then challenged their respective denials in District Court. In each case, the Government 4 reversed its position after the complaints were filed, waived the fees in question, and filed a motion for summary judgment on the grounds that the claims involving the individual denials of the fee waiver requests were moot and that the challenges to the facial validity of the DOJ guidelines and the Interior regulation were not ripe. The District Court agreed with the Government and held that the claims in question were not justiciable.
We disagree. Although the challenges to the guidelines and the regulation as applied to the particular fee waiver requests are indisputably moot, it is equally clear that the appellants' claims that the DOJ guidelines and the Interior regulation are facially invalid survive. The critical question is whether the facial challenges are ripe at this time. We hold that the crucial prerequisites to ripeness--final agency action, purely legal questions, and hardship if review is withheld--are present in the instant case. Therefore, we remand these cases to the District Court for consideration on the merits.
FOIA permits agencies to impose "reasonable standard charges for document search and duplication" to recover the direct costs of such services. The statute also provides that:
Documents shall be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public. 5
The legislative history of the fee waiver provision reveals that it was added to FOIA "in an attempt to prevent government agencies from using high fees to discourage certain types of requesters, and requests," in particular those from journalists, scholars and nonprofit public interest groups. 6 In 1980, however, after some experience with the fee waiver provision, a congressional subcommittee concluded that "[m]ost agencies have ... been too restrictive with regard to granting fee waivers for the indigent, news media, scholars" and, therefore, recommended that the DOJ develop guidelines to deal with these problems. 7
On December 18, 1980, the DOJ's Office of Information Law and Policy promulgated a set of such guidelines under the rubric "Interim Fee Waiver Policy." In January, 1983, however, the DOJ's Office of Legal Policy issued a new memorandum that superseded the interim guidelines. The 1983 memorandum sets forth the DOJ's twofold commitment "to encouraging agencies to waive FOIA search and duplication fees where the disclosure of requested information will primarily benefit the general public," and to "the preservation of public funds where there will be insufficient public benefit derived from disclosure." 8 It then lists five general factors 9 that agencies should consider in determining whether to grant a fee waiver.
At all times relevant to this case, State had in effect regulations governing the granting of FOIA fee waivers 10 that were adopted pursuant to a notice and comment rulemaking. 11 State has admitted, however, that it "utilizes [the DOJ] guidelines in resolving requests for fee waivers." 12 Interior, too, has in effect a regulation pertaining to the granting of fee waivers. 13 However, Interior also employs the DOJ guidelines in its fee waiver determinations. 14 Most importantly, the record reveals that both departments explicitly relied on the DOJ guidelines in their denials of the BGA and NWF waiver requests involved in this appeal and will continue to employ them in processing FOIA fee waiver requests in the future.
BGA is a nonprofit organization that conducts investigations designed to expose waste, fraud and abuse in the functioning of government programs. In the course of its work, BGA made a FOIA request to State. BGA sought any audits, inspections or reports issued by that department's Inspector General regarding the five American embassies receiving the most official visitors, and petitioned for a fee waiver. In an initial decision dated July 26, 1983, State denied the fee waiver request, stating that it did "not believe that the processing of [the] request [would] primarily benefit the general public." 15 BGA sought a reconsideration of this decision; but State denied its appeal on September 27, 1983, relying on the DOJ guidelines here at issue. BGA then appealed that decision in the District Court.
On December 8, 1983, counsel for State informed BGA that the agency had reversed its position and would grant the fee waiver. Subsequently, State filed a motion for summary judgment, arguing that its ultimate waiver of fees rendered the case moot as to the specific request and unripe as to the challenge to the facial validity of the guidelines. The District Court dismissed the case on these grounds, and this appeal followed.
NWF is a nonprofit organization "dedicated to the promotion of conservation principles on behalf of a large national ... constituency." 16 In March, 1983, NWF filed a FOIA request with the Montana State Director of the Bureau of Land Management ("BLM") 17 seeking documents related to the impact of proposed coal exchanges and lease sales on fish and wildlife, as well as a waiver of search and copying fees. The BLM denied the fee waiver request. NWF paid the required sum in order to expedite the processing of its request, while simultaneously seeking a reconsideration of the fee waiver denial. Citing the DOJ guidelines, the BLM, and subsequently Interior, refused to reconsider this decision.
NWF, like BGA, then sought relief in District Court. Here, too, Government counsel announced a reversal of the agency position, refunded the fee and filed a motion for summary judgment. The District Court held that the case was moot, and that, as a consequence, NWF lacked standing; the trial court also held that the challenges to the DOJ guidelines and the Interior regulation were not ripe. NWF appeals from that decision.
The BGA and NWF cases have been consolidated for purposes of this appeal.
The Government claims that its belated decisions to waive the appellants' FOIA fees mooted the disputes before the District Court. However, appellants challenged not only the application of the DOJ guidelines and the Interior regulation to their respective requests, but also the facial validity of these provisions. Thus, BGA and NWF contend that the controversy between the parties remains alive.
The doctrine of mootness is a logical corollary of the requirement of Article III of the Constitution. A federal court is constitutionally forbidden to render advisory opinions or "to decide questions that cannot affect the rights of litigants in the case before them." 18 Any judgment issued must resolve " 'a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.' " 19
A consideration of the circumstances of this case in light of the constitutional standard reveals that the appellants' challenge to the standards as applied to their specific fee waiver requests is, in fact, moot. Even assuming appellants' claims that they were improperly denied fee waivers were well-founded, we cannot order the appellee departments to do something they have already done, i.e. waive the FOIA fees in the instant cases. 20 As to this issue, BGA and NWF " 'ha[ve] obtained everything that [they] could recover ... by a judgment of this court in [their] favor.' " 21...
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