Crew v. U.S. Dept. of Homeland Sec.

• Decision Date: 11 July 2008
• Docket Number: No. 07-5406.,07-5406.
• Citation: 532 F.3d 860
• Parties: CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Appellee v. U.S. DEPARTMENT OF HOMELAND SECURITY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

532 F.3d 860

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Appellee v. U.S. DEPARTMENT OF HOMELAND SECURITY, Appellant.

No. 07-5406.

United States Court of Appeals, District of Columbia Circuit.

Argued April 21, 2008.

Decided July 11, 2008.

Appeal from the United States District Court for the District of Columbia (No. 06cv01912).

Jonathan F. Cohn, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Jeffrey S. Bucholtz, Acting Assistant Attorney General, and Mark B. Stern, Michael S. Raab, Mark R. Freeman, and Christopher J. Walker, Attorneys. Jeffrey A. Taylor, U.S. Attorney, entered an appearance.

Anne L. Weismann argued the cause for appellee. With her on the brief was Melanie Sloan.

David L. Sobel and Eric N. Lieberman were on the brief for amici curiae The Washington Post, et al. in support of appellee and urging affirmance.

Before: SENTELLE, Chief Judge, and TATEL and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

In this Freedom of Information Act case, Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit organization and government watchdog, seeks disclosure of Secret Service visitor logs revealing whether nine specified individuals entered the White House Complex or the Vice President's Residence at any time "from January 1, 2001, to the present." Instead of invoking any FOIA exemption, the government moved for summary judgment, arguing that even though the Secret Service is an "agency" for FOIA purposes, the requested visitor logs do not qualify as "agency records" subject to disclosure. See 5 U.S.C. § 552(a)(4)(B) (granting federal courts jurisdiction to enjoin agencies from improperly withholding "agency records"). Disagreeing, the district court denied the government's motion and ordered the Secret Service to "process [CREW]'s Freedom of Information Act request and produce all responsive records that are not exempt from disclosure within 20 days." Order, CREW v. Dep't of Homeland Sec., 527 F.Supp.2d 76 (D.D.C. 2007). On the parties' joint motion, however, the court stayed its order pending the government's appeal. Although neither party has raised the issue, we now dismiss the appeal for lack of appellate jurisdiction. See Nat'l Mining Ass'n v. Kempthorne, 512 F.3d 702, 706 (D.C.Cir. 2008) ("We have an `independent obligation to determine whether subject-matter jurisdiction exists,' which we must discharge before ruling on the merits." (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citation omitted))).

The government claims two bases for appellate jurisdiction. First, it invokes 28 U.S.C. § 1291, which provides "jurisdiction of appeals from all final decisions of the district courts of the United States." Here, however, the district court's order is not final; it merely denied the government's motion for summary judgment, and "as a general rule, we lack jurisdiction to hear an appeal of a district court's denial of summary judgment, partial or otherwise." Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 296 (D.C.Cir.2006). "This rule prevents piecemeal litigation and eliminates delays occasioned by interlocutory appeals," McSurely v. McClellan, 697 F.2d 309, 315 (D.C.Cir.1982), and we see no reason to depart from it here. The government has yet to claim the right to withhold the requested records under any of FOIA's nine exemptions. See 5 U.S.C. § 552(b) (listing exemptions). Indeed, in its motion for summary judgment, the government explained, "[e]ven if these types of records were agency records under the FOIA, most or all of them would be protected by one or more FOIA exemptions, most notably Exemption 5, which encompasses the common law discovery privileges," Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. 17 n.18 ("Mot. for Summ. J."), including the presidential communications privilege, see Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108, 1113 (D.C.Cir.2004) ("Exemption 5 ... has been construed to incorporate the presidential communications privilege."). "Therefore," the government continued, "should the courts somehow conclude that the materials in question are `agency' records subject to FOIA, defendants respectfully reserve the right to assert any applicable exemption claim(s) prior to disclosure, and to litigate further any such exemption claims." Mot. for Summ. J. 17 n.18. That is precisely the situation in which the government now finds itself. Only after the district court rules on any claimed exemptions—either for or against the government—will there be a final decision for the government or CREW to appeal. The district court's decision is thus hardly one that "ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)).

Second, the government points to 28 U.S.C. § 1292(a)(1), which allows appeals from "[i]nterlocutory orders of the district courts of the United States ... granting ... injunctions." But our precedent makes clear that orders like the one before us fail to qualify as appealable injunctions under section 1292(a)(1). Indeed, Green v. Department of Commerce, 618 F.2d 836 (D.C.Cir.1980), is directly on point. There a FOIA requestor sought disclosure of "boycott reports"—documents revealing "requests by foreign nations for cooperation with boycotts against countries friendly to the United States"— that exporting companies had submitted to the Department of Commerce. Id. at 837. The district court ordered the government to produce the reports to the plaintiff, but only after notifying the exporters who had submitted them, "so that they could object to specific disclosures that might cause them competitive injury." Id. at 838. Rejecting the government's contention that this order amounted to an appealable injunction, we explained that the argument "seem[ed] to be based on the erroneous belief that the District Court order impliedly require[d] disclosure of documents under the FOIA." Id. at 841. "On the contrary," we said, "the District Court has not yet determined whether to order release of any documents sought by appellees. The court has merely heard and rejected two of the [agency]'s legal defenses." Id. at 839.

So too here. As in Green, "there has not yet been any requirement—implied or otherwise—of disclosure of documents," id. at 841; the district court has simply heard and rejected the Secret Service's legal defense that its visitor logs fail to qualify as "agency records." Here, as in Green, it is entirely possible that the government will never have to turn over a single document given that the Secret Service may yet be entitled to withhold some or all of the documents under one or more of FOIA's nine exemptions. Indeed, the district court made clear that the government "has a ready recourse in Exemption 5" should it believe that the visitor records would reveal privileged presidential communications. CREW v. Dep't of Homeland Sec., 527 F.Supp.2d 76, 99 (D.D.C. 2007). Both Green and this case thus stand in contrast to FOIA cases in which we found section 1292(a)(1) jurisdiction after a district court had considered and rejected the government's claimed exemptions. See, e.g., Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 369 (D.C.Cir.2005) ("The trial court unequivocally rejected the Government's legal position regarding the substantive protection afforded by the attorney work-product doctrine under Exemption 5 of FOIA, and ordered the Government to disclose materials for which it claimed exemption."); Judicial Watch, Inc. v. Dep't of Energy, 412 F.3d 125, 128 (D.C.Cir.2005) (finding the district court's order appealable under section 1292(a)(1) because "it require[d] the disclosure of documents for which the agencies claim[ed] no basis for non-disclosure beyond the argument already rejected by the district court"); see also Ferguson v. FBI, 957 F.2d 1059, 1064 (2d Cir. 1992) (distinguishing appealable FOIA disclosure orders from those in which "the district court ha[d] yet to determine whether the [agency] must disclose the relevant information").

In Green, we also rejected the government's argument that because the district court's order directed the agency to contact exporters whose trade secrets could be affected by disclosure, the order was "injunctive in nature." 618 F.2d at 841. We explained that the order was "not ... an `injunction' for purposes of Section 1292(a)(1)" because "it d[id] not affect the rights or behavior of parties outside of the litigation, and d[id] not differ from any other time-consuming requirement imposed on litigants by courts in the interest of obtaining full information." Id. For similar reasons, the district court's order requiring the Secret Service to process CREW's request within twenty days does not qualify as an injunction under section 1292(a)(1). Under the court's order, the Secret Service will have to search for and locate any responsive documents and claim any exemptions it believes applicable. At that point, the court may agree with the agency, allowing it to withhold the requested records, in which case the government would have no cause to appeal. Or alternatively, "the issues might be sufficiently narrowed to permit the parties to reach a settlement." Id. at 839. In either case, appellate review at this stage is premature.

The collateral order doctrine, of course, provides another possible basis for appellate jurisdiction. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). That doctrine allows interlocutory review of a "small class" of decisions that "conclusively determine the disputed question,...