Main St. Legal Servs., Inc. v. Nat'l Sec. Council
| Decision Date | 26 January 2016 |
| Docket Number | No. 13–3792–CV.,13–3792–CV. |
| Citation | 811 F.3d 542 |
| Parties | MAIN STREET LEGAL SERVICES, INC., Plaintiff–Appellant, v. NATIONAL SECURITY COUNCIL, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Ramzi Kassem, Main Street Legal Services, Inc. (Douglas Cox, City University of New York School of Law, on the brief), Long Island City, New York, for Plaintiff–Appellant.
Jaynie Randall Lilley, Attorney (Stuart F. Delery, Assistant Attorney General, Mark B. Stern, Attorney, on the brief), Civil Division, United States Department of Justice, Washington, D.C., for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Defendant–Appellee.
Before: RAGGI, WESLEY, and LYNCH, Circuit Judges.
Judge WESLEY concurs in a separate opinion.
This appeal requires us to decide whether the National Security Council ("NSC") is an "agency" subject to the retention and disclosure requirements of the Freedom of Information Act ("FOIA"), Pub.L. No. 89–487, 80 Stat. 250 (1966) (). The United States District Court for the Eastern District of New York (Eric N. Vitaliano, Judge ) concluded that it was not and, on August 7, 2013, entered judgment dismissing this FOIA action to compel the production of certain NSC minutes and records, particularly those related to targeted drone strikes. See Main St. Legal Servs. v. Nat'l Sec. Council, 962 F.Supp.2d 472 (E.D.N.Y.2013).
On de novo review, see Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir.2015), we construe the "agency" provision of the FOIA, 5 U.S.C. §§ 551(1), 552(f)(1), the "function" provisions of the NSC's statute, 50 U.S.C. § 3021(a), and the current presidential directive organizing the National Security Council System ("NSC System"), see Barack Obama, Presidential Policy Directive –1 ("PPD–1"), at 1 (2009), available at https://www.hsdl.org/?view&did=34560, among other available legal sources, and we conclude that the NSC is not an agency subject to the FOIA. Because we further construe the FOIA's agency requirement to relate to the court's remedial power rather than to its subject-matter jurisdiction, we conclude that the district court properly granted dismissal for failure to state a claim, see Fed.R.Civ.P. 12(b)(6), rather than for lack of jurisdiction, see Fed.R.Civ.P. 12(b)(1). Finally, we conclude that the district court acted within its discretion in granting dismissal without discovery. We, therefore, affirm the challenged judgment.
The FOIA, which took effect in July 1967, establishes record retention and disclosure requirements for federal agencies. See 5 U.S.C. § 552. Of particular relevance here is the requirement that agencies "promptly [make] available to any person," upon request, such reasonably described records as are not already publicly available and not subject to specific exemptions. Id. § 552(a)(3)(A) ; see id. § 552(b) (identifying exemptions). A person who thinks that an agency has improperly withheld records subject to FOIA disclosure may seek an order of production from a district court, which will review the matter de novo, placing the burden on the agency to defend its non-disclosure decisions. See id. § 552(a)(4)(B). Where, as here, there is a dispute as to whether the requested entity is an agency, the burden on that preliminary legal question rests with the party seeking production. See Armstrong v. Exec. Office of the President, 90 F.3d 553, 565 (D.C.Cir.1996).1
In the National Security Act of 1947, Pub.L. No. 80–253, § 101, 61 Stat. 495, 496–97 (), Congress created a National Security Council ("Council") and assigned it "[t]he function ... to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security," 50 U.S.C. § 3021(a).2 The statute denominates the President as the presiding officer of the Council, on which serve certain statutorily identified officials, including the Vice President and the Secretaries of State, Defense, and Energy, as well as other persons appointed by the President. See id.3
On November 27, 2012, plaintiff Main Street Legal Services, Inc. ("Main Street"), "a non-profit law firm within the City University of New York School of Law," Compl. ¶ 4, submitted a FOIA request to the NSC seeking production of (1) "[a]ll records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals," and (2) "[a]ll National Security Council meeting minutes taken in the year 2011," J.A. 25.4 The NSC denied the request by letter dated December 14, 2012, stating that "[a]s an organization in the Executive Office of the President that advises and assists the President, the National Security Council is not subject to the Freedom of Information Act." Id. at 29.
Main Street disagreed and, on February 21, 2013, it commenced this FOIA action in the Eastern District of New York, invoking 5 U.S.C. § 552(a)(4)(B) to seek a judicial order compelling the NSC to produce the requested records. The NSC moved to dismiss the complaint both for failure to state a claim upon which relief could be granted and for lack of subject-matter jurisdiction, arguing that it was not an "agency" subject to the FOIA. 5 U.S.C. §§ 551(1), 552(f)(1) ; see Fed.R.Civ.P. 12(b)(1), (b)(6).
The district court agreed that the NSC was not an agency and dismissed the case on the merits. On August 7, 2013, it entered the judgment in favor of the NSC from which Main Street now appeals.See Main St. Legal Servs. v. Nat'l Sec. Council, 962 F.Supp.2d at 478–79.
As the parties acknowledge, the FOIA applies only to federal agencies. Prior to 1974, the FOIA did not itself define "agency" but, rather, relied on the Administrative Procedure Act, which defines agency as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency," subject to certain exceptions not applicable here. 5 U.S.C. § 551(1). In 1974, Congress amended the FOIA to clarify that the § 551(1) definition of agency, as applied to the FOIA, "includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President ), or any independent regulatory agency." FOIA Amendments of 1974, Pub.L. No. 93–502, sec. 3, § 552(e), 88 Stat. 1561, 1564 () (emphasis added). Main Street argues that the highlighted FOIA language is unambiguous and, therefore, dispositive of the single issue on this appeal: the NSC is an "establishment in the executive branch of the Government" within "the Executive Office of the President" and, therefore, an "agency" subject to the FOIA.
Generally, "if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis." Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 93, 127 S.Ct. 1534, 167 L.Ed.2d 449 (2007) ; see United States v. Colasuonno, 697 F.3d 164, 173 (2d Cir.2012). The Supreme Court, however, has not strictly applied this rule in construing the above-highlighted language of the FOIA. Rather, in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 155–57, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Court looked to the FOIA's legislative history in concluding that notes made by the President's National Security Advisor were not agency records subject to the FOIA. The history referenced in Kissinger indicates that Congress did not intend for " ‘the President's immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President’ " to be "included within the term ‘agency’ under the FOIA." Id. at 156, 100 S.Ct. 960 . Thus, to decide this appeal, we must look beyond the text of § 552(f)(1) and consider whether the NSC is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive.5
In making such a function determination, we are mindful that Congress derived the standard quoted in Kissinger from Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971). See H.R.Rep. No. 93–1380 (Conf.Rep.), reprinted in FOIA Source Book at 232 ( " ; see also Armstrong v. Exec. Office of the President, 90 F.3d at 558 (); Meyer v. Bush, 981 F.2d 1288, 1291 (D.C.Cir.1993) (same). Soucie construed the Administrative Procedure Act's definition of "agency," referencing government "authority," to reach executive branch units that have "substantial independent authority in the exercise of specific functions," 448 F.2d at 1073 (citing 5 U.S.C. § 551(1) ), but not to reach units whose "sole function [is] to advise and assist the President," id. at 1075. Soucie applied these two prongs of analysis to the Office...
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