Center for Nat. Sec. Studies v. C.I.A.

• Decision Date: 22 July 1983
• Docket Number: No. 82-1619,82-1619
• Citation: 711 F.2d 409
• Parties: CENTER FOR NATIONAL SECURITY STUDIES, et al. (Monica Andres) Appellants, v. CENTRAL INTELLIGENCE AGENCY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 409

711 F.2d 409

229 U.S.App.D.C. 131

CENTER FOR NATIONAL SECURITY STUDIES, et al. (Monica Andres) Appellants, v. CENTRAL INTELLIGENCE AGENCY, et al., Appellees.

No. 82-1619.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 15, 1983.

Decided July 22, 1983.

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

Graeme W. Bush, Washington, D.C., for appellants.

Jeffrey N. Gibbs, Sp. Asst. U.S. Atty. of the Bar of the Supreme Court of the State of N.Y., New York City, pro hac vice, by special leave of the Court, with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., were on brief, for appellees.

Patricia J. Kenney, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellees.

Before TAMM and GINSBURG, Circuit Judges, and JOHN W. PECK, ^* Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit.

Opinion for the court filed by Senior Circuit Judge JOHN W. PECK.

JOHN W. PECK, Senior Circuit Judge:

Appellant Center for National Security Studies (CNSS) sought disclosure of 12 categories of documents from the Central Intelligence Agency (CIA) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. CNSS's initial request for release of all documents was refused. Subsequent appeals were acknowledged by CIA but no action was taken. CNSS then filed suit in the United States District Court for the District of Columbia seeking judicial review of CIA's action. In a 15-count complaint appellant CNSS requested that CIA disclose each category of documents. Both parties moved for summary judgment as to count VII of the complaint which requested disclosure of documents containing the budget figure for the National Foreign Intelligence Program (NFIP) for fiscal year 1979. The district judge granted appellee CIA's motion for summary judgment. Appellant CNSS appeals this order to this court.

CNSS is a nonprofit public interest project based in Washington, D.C. Among its many activities, members of CNSS participate in discussions of national security matters through teaching at universities, testifying before Congress, and by publishing a monthly newsletter providing information on national security topics. During the past decade, under the leadership of its director, Morton H. Halperin, CNSS has taken a particular interest in the activities of the CIA. Through the use of FOIA, CNSS has secured information from various government agencies, including CIA, which it has used to both stir discussion of national security matters and to inform the general public.

Beginning in 1976 members of CNSS filed a series of FOIA requests with CIA seeking disclosure of documents concerning the activities and functions of the Agency. Each request was denied by CIA. Subsequent appeals by CNSS, while acknowledged by CIA, were not acted upon.

On August 11, 1978 CNSS ¹ sought release of files containing the fiscal year 1979 budget figure for the CIA, the particular claim at issue in this appeal. On September 7, 1978 Charles Savige, on behalf of George Owens, Information and Privacy Coordinator for CIA, denied the request citing exemptions 1 and 3 of FOIA. ²

Pursuant to 5 U.S.C. § 552(a)(4) of FOIA, CNSS filed suit in the United States District Court for the District of Columbia seeking judicial review of CIA's refusals to disclose 12 categories of documents. ³ In count VII of the complaint, at issue in this case, CNSS sought disclosure of the fiscal year 1979 budget figure for the NFIP. ⁴ The NFIP budget figure constituted the amount of money allocated to all agencies in the United States government concerned with national intelligence matters including CIA, NSA, the Department of State and several others. Appellee CIA sought summary judgment on count VII, the NFIP budget figure, again claiming protection under FOIA exemptions 1 and 3. CIA, in relying on exemption 1, cited Executive Order 12065 and introduced an affidavit by Director of Central Intelligence William Casey in support of its motion. Casey stated that disclosure of the NFIP budget figure posed a "reasonable threat to national security." CIA based its exemption 3 argument on two statutory provisions, 50 U.S.C. §§ 403(d)(3) and 403g (1981).

CNSS also sought summary judgment on count VII, the NFIP budget figure. It argued that testimony before Congress by former Director of Central Intelligence Admiral Stansfield Turner in 1978 as a matter of law refuted the contentions that disclosure of the NFIP budget figure was prohibited by Executive Order 12065, that its release posed a reasonable danger to national security, and that its release was prohibited by statute.

The district judge granted appellee CIA's motion for summary judgment. He held that as a matter of law exemption 1, on the basis of the Casey affidavit and Executive Order 12065, protected CIA from disclosure. CNSS appeals to this court arguing the district judge improperly granted CIA summary judgment since material questions of fact remained to be decided and, in the alternative, that the district judge should have granted its motion for summary judgment.

Before reaching the merits presented in this appeal we must determine whether we have jurisdiction to render a decision. Appellee CIA urges that we lack jurisdiction in this case since the district court has not reached a final judgment terminating all issues in dispute between the parties, and that this court therefore lacks jurisdiction under 28 U.S.C. § 1292(a)(1). We agree.

Federal courts are courts of limited jurisdiction. That jurisdiction is determined by Congress by statute within the confines of the Constitution. In general federal appellate courts have jurisdiction to review only final judgments of a district court. ⁵ 28 U.S.C. § 1292, however, carves out a limited category of interlocutory orders where a circuit court has jurisdiction to review. In particular § 1292(a)(1) allows review of orders by a district judge "granting, continuing, modifying, refusing or dissolving injunctions ...." 28 U.S.C. § 1292(a)(1).

Not every order of a district court denying injunctive relief, however, is reviewable through an interlocutory appeal. In Switzerland Cheese Ass'n, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), the Supreme Court held that a summary judgment motion denying a permanent injunction was not immediately appealable under § 1292(a)(1) where the district judge's decision that there were triable issues "[did] not settle or even tentatively decide anything about the merits of the claim." The Court declared its decision was impelled by the congressional policy against piecemeal appeals during the pendency of an action in the district court. Allowing such an appeal would open the floodgates to numerous appeals, hindering the effective administration of justice. Id. at 24-25, 87 S.Ct. at 194-195.

Two later Supreme Court holdings further illuminated the proper approach for determining appealability of district court orders having the practical effect of denying injunctive relief. In Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978), the Court held that no jurisdiction existed under § 1292(a)(1) where a petitioner sought review of a district court order denying class certification. In denying class certification the district judge was not required to reach the merits of petitioner's individual claim. Further, no serious or irreparable harm would result from delaying review of this question until rendition of final judgment in the case. In Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), the Court found jurisdiction under § 1292(a)(1) where petitioner appealed a district judge's refusal to enter a decree in support of a settlement in a Title VII dispute. The Court explained that serious, perhaps irreparable, injury to the petitioner would occur if decision on the appeal was delayed until after final judgment. Id. at 86-89, 101 S.Ct. at 997-999 (irreparable harm included cost of litigation which might be avoidable if the settlement agreement was approved).

In reliance on older Supreme Court precedents, however, ⁶ lower federal courts have continued to allow interlocutory appeals from orders having the practical effect of denying injunctions where such orders involve a ruling on the merits of a case. Tokarcik v. Forest Hills School District, 665 F.2d 443, 447 (3d Cir.1981), cert. denied sub nom. Scanlon v. Tokarcik, --- U.S. ----, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982); Miller v. Bell, 661 F.2d 623, 625 (7th Cir.1981), cert. denied sub nom. Miller v. Webster, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982); Laffey v. Northwest Airlines, Inc., 642 F.2d 578, 584 n. 49 (D.C.Cir.1980); Abercrombie & Fitch Co. v. Hunting World, Inc., 461 F.2d 1040 (2d Cir.1972).

Derived from these case precedents, a methodology for determining whether an interlocutory appeal under § 1292(a)(1) from a district judge's order having the practical effect of denying injunctive relief has emerged. If the order fails to address the merits of the case, appeal will lie under § 1292(a)(1) only if appellant can show some serious, perhaps irreparable, harm resulting from delay caused by denial of review. When, however, the order involves a decision directly addressing the merits of the case, an immediate appeal is available under § 1292(a)(1).

In this case the initial question is whether the district judge's order granting summary judgment for CIA was a denial of injunctive relief. Under the FOIA a court's function in reviewing an agency denial of a request for documents is ordinarily to determine whether to order disclosure or to permit an agency to withhold such documents under the exemptions of the act. Clearly such a function is injunctive in nature. CNSS specifically sought injunctive relief in its complaint. We hold,...