Cause of Action Inst. v. U.S. Dep't of Commerce, Civil Action No. 1:19-cv-00778 (CJN)

• Decision Date: 14 January 2021
• Docket Number: Civil Action No. 1:19-cv-00778 (CJN)
• Citation: 513 F.Supp.3d 116
• Parties: CAUSE OF ACTION INSTITUTE, Plaintiff, v. U.S. DEPARTMENT OF COMMERCE, Defendant.
• Court: U.S. District Court — District of Columbia

513 F.Supp.3d 116

CAUSE OF ACTION INSTITUTE, Plaintiff,

v.U.S. DEPARTMENT OF COMMERCE, Defendant.

Civil Action No. 1:19-cv-00778 (CJN)

United States District Court, District of Columbia.

Signed January 14, 2021

Lee A. Steven, Ryan Patrick Mulvey, Russel James Valvo, III, Cause of Action Institute, Arlington, VA, for Plaintiff.

John Moustakas, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

CARL J. NICHOLS, United States District Judge

In this suit under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, Plaintiff Cause of Action Institute seeks to compel the Department of Commerce to release a report prepared by the agency for the President regarding the national-security impact of the importation of passenger vehicles and automobile parts. See generally Compl., ECF No. 1. Although the Secretary of Commerce was required by Section 232 of the Trade Expansion Act of 1962 to prepare the report and make it public, Commerce contends that the report is covered by the presidential communications and the deliberative process components of executive privilege and therefore need not be produced under FOIA Exemption 5. See generally Defendant's Motion for Summary Judgment ("Def.’s Mot."), ECF No. 20. The Court agrees, and grants Commerce's Motion for Summary Judgment and denies Cause of Action's Cross-Motion.

I. Background

The United States Constitution gives Congress the authority to set tariffs and "regulate Commerce with foreign Nations." U.S. CONST. art. I, § 8, cl. 3. Section 232 of the Trade Expansion Act of 1962 ("Section 232"), delegates some of that authority to the President, allowing the President to modify imports to ensure that domestic industrial capacity remains sufficient to safeguard the national security. 19 U.S.C. § 1862. The President's statutory authority is broad. He is permitted to take actions—including modifying tariffs—that in his estimation "must be taken to adjust" imports "so that such imports will not threaten to impair the national security." Id. § 1862(c)(1)(A)(ii).

But Congress's delegation is not unconditional. Before the President can exercise his Section 232 authority, the Secretary of Commerce must, on request or on his motion, initiate "an appropriate investigation to determine the effects on the national security of imports of the article which is the subject of such request." Id. § 1862(b)(1)(A). After concluding the investigation, the Secretary must submit to the President a report detailing the factual findings and recommendations on how to neutralize a threat to national security, if one exists. Id. § 1862(b)(3)(A). If the Secretary's report finds that "an article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security," the President must determine whether he agrees with that finding and, if so, "determine the nature and duration of the action that, in the judgment of the President, must be taken to adjust the imports of the article[s]" such that they "will not threaten to impair the national security." Id. § 1862(c)(1)(A).

Section 232 also requires publication of the Secretary's report. The statute states that "[a]ny portion of the report submitted by the Secretary ... which does not contain classified information or proprietary information shall be published in the Federal Register." Id. § 1862(b)(3)(B). Section 232 does not, however, include an express deadline by which the report must be published.

In May 2018, the President "instructed" the Secretary "to consider initiating a Section 232 investigation into imports of automobiles, including trucks, and automotive parts to determine their effects on America's national security," Statement from the President on Potential National Security Investigation into Automobile Imports, ECF No. 20-3, Exhibit 6, which the Secretary did later that month. See Def.’s Mot., ECF No. 20, at 2; see also Notice of Request for Public Comments and Public Hearing on Section 232 National Security Investigation of Imports of Automobiles, Including Cars, SUVs, Vans and Light Trucks, and Automotive Parts, 83 Fed. Reg. 24,735 (May 30, 2018). After concluding his investigation, the Secretary transmitted a report (hereafter, the "Report") to the President containing his factual findings and proposed recommendations. In particular, the Secretary found that "present quantities and circumstances of automobile and certain automobile parts imports threaten to impair the national security," and recommended that the President take certain actions to correct the issue. Proclamation No. 988, 84 Fed. Reg. 23,433, 23,434 (May 21, 2019).

Three months later, the President issued a proclamation concurring with the Secretary's determination that the United States is currently importing automobiles and certain automobile parts at such a rate and under such circumstances that it threatens to impair the national security. See 84 Fed. Reg. 23,433. The proclamation itself summarizes the Report's conclusions, including the Secretary's proposed recommendations, and directly quotes the Report five times. See id. Most of the quotes are only sentence fragments, but the proclamation does include one quotation that is a full sentence long. See id.

Although the President agreed with the Secretary's findings, he did not invoke his statutory authority to impose tariffs on the imports of automobiles or their parts. Instead, based on the Secretary's determination that successful trade negotiations could remedy the threatened impairment to national security, the presidential proclamation directed the U.S. Trade Representative to engage in negotiations with Japan, the European Union, and others to address the threat. Id. at 23,434. Those negotiations remain ongoing and have not yet produced an agreement.

In February 2019, Cause of Action sent two FOIA requests to Commerce—one to the Bureau of Industry and Science, which prepared the Report, and one to the Office of the Secretary, which was responsible for transmitting the Report to the President—seeking the Report. A month later, Cause of Action filed this lawsuit, alleging that Commerce failed to provide a timely determination on or produce records responsive to the FOIA requests. See Compl. ¶¶ 14–21, ECF No. 1. Shortly thereafter, Commerce informed Cause of Action that it would be withholding the Report in its entirety under Exemption 5 of FOIA, claiming the document was protected from disclosure by both the presidential communications privilege and the deliberative process privilege. The Parties ultimately filed cross-motions for summary judgment, and the Court held a hearing on the motions. See generally Def.’s Mot., ECF No. 20; see also generally Pl.’s Opp'n, ECF No. 23.

Subsequent to the Parties’ briefing on their cross-motions, Congress passed and the President signed into law the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2020, Pub. L. No. 116-93, 133 Stat. 2317 (2019). Section 112 of the 2020 Appropriations Act expressly directs the Secretary to publish the Report within thirty days of the enactment of the Act, that is, by January 19, 2020. Consolidated Appropriations Act, 2020, § 112, 133 Stat. at 2395.

However, when the President signed the Act into law, he stated that certain provisions "purport to mandate or regulate the dissemination of information that may be protected by executive privilege." Presidential Statement on Signing the Consolidated Appropriations Act, 2020, 2019 Daily Comp. Pres. Doc. No. DCPD201900881, at 2 (Dec. 20, 2019). The President also stated that his administration would "treat these provisions consistent with the President's constitutional authority to control information, the disclosure of which could impair the national security, foreign relations, the deliberative process of the executive branch, or the performance of the President's constitutional duties." Id.

On January 17, 2020, two days before the new congressionally imposed deadline for release, the Department of Justice's Office of Legal Counsel issued an opinion concluding that the Secretary need not comply with the deadline because the statute did not overcome the executive privileges that apply to the Report. See generally Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security (Slip Opinion), ECF No. 31. Specifically, the OLC Opinion found that the Report fell within the presidential communications component and the deliberative process component of executive privilege, id. at 7, and further concluded that Congress could not override the privilege here. Id. at 23.

The Court held an additional hearing on the motions and permitted the Parties to submit supplemental briefs on the effect of the Appropriations Act and the OLC opinion. The Court also required Commerce to submit the Report for in camera review. Commerce complied, first submitting the Report in redacted form, see Def.’s Notice of Ex Parte Submission for In Camera Review, ECF No. 34, and later without redactions, see Def.’s Notice of Ex Parte Submission for In Camera Review, ECF No. 45. To date, the government has not released the Report, either to the public or Cause of Action.

II. Legal Standard

"[T]he vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011). "FOIA ... mandates that an agency disclose records on request, unless they fall within one of nine exemptions." Milner v. Dep't of the Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). "FOIA mandates a ‘strong presumption in favor of disclosure,’ " Nat'l Ass'n of Home Builders v. Norton , 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep't of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) )—so much so that FOIA "expressly places the burden ‘on the agency to sustain its action’...