Mohamed Al-Fayed & Punch Limited v. Cent. Intelligence Agency

• Decision Date: 13 July 2001
• Docket Number: No. 00-5457,00-5457
• Citation: 254 F.3d 300,2001 WL 788094
• Parties: (D.C. Cir. 2001) Mohamed Al-Fayed and Punch Limited, Appellants v. Central Intelligence Agency, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 300

254 F.3d 300 (D.C. Cir. 2001)

Mohamed Al-Fayed and Punch Limited, Appellants v. Central Intelligence Agency, et al., Appellees

No. 00-5457

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 17, 2001

Decided July 13, 2001

Appeal from the United States District Court for the District of Columbia (No. 00cv02092)

Mark S. Zaid argued the cause and filed the briefs for appellants.

Gregg P. Leslie, Lucy A. Dalglish, David Sobel, Arthur B. Spitzer and Kate Martin were on the brief for amici curiae Reporters Committee for Freedom of the Press, et al., in support of appellants.

Thomas M. Bondy, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Wilma A. Lewis, U.S. Attorney at the time the brief was filed, and Mark B. Stern, Attorney, U.S. Department of Justice.

Before: Henderson, Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

This case raises an issue of first impression: the standard of judicial review applicable to agency denials of expedited processing under the Freedom of Information Act (FOIA), 5 U.S.C. 552. We conclude that district courts must review such denials de novo, rather than defer to agency determinations. We further conclude that the denials of expedition in this case survive de novo review and, accordingly, we affirm the district court's refusal to grant plaintiffs injunctive relief.

I

The plaintiffs in this case are Mohamed Al Fayed and Punch Limited, a British magazine of political satire owned and published by Al Fayed. They seek documents concerning events associated with the death of Diana Spencer, Princess of Wales, and of Al Fayed's son, Dodi Al Fayed. Together with their driver, Henri Paul, the two died in an automobile accident in Paris on August 31, 1997. The French government investigated the accident and concluded that it was caused by Paul's intoxication and excessive speed. First Am. Compl. pp 14-15.

Plaintiffs allege that the National Security Agency (NSA) may have secretly recorded Princess Diana's telephone conversations. Id. p 63. They also contend that following the automobile accident, a former British intelligence officer provided French investigators with evidence that Paul had been secretly employed by the British foreign intelligence service ("MI6"). Id. p 18. Plaintiffs further allege, "[u]pon information and belief," that in 1998, at the behest of the British government, the United States denied that former officer entry into this country to tell his story. Id. p 20.

Plaintiffs next claim that, later in 1998, Al Fayed was the victim of an attempted fraud by Oswald LeWinter, a man claiming connections to the Central Intelligence Agency (CIA), who tried to sell Al Fayed fabricated documents indicating that MI6 was involved in the automobile crash. After alerting the CIA and Federal Bureau of Investigation (FBI), Al Fayed's representatives arranged to meet with LeWinter in Vienna. When LeWinter arrived, he was arrested and incarcerated by Austrian authorities. Id. pp 24-42. In a post-complaint affidavit, plaintiffs allege that the United States Attorney's Office for the District of Columbia promised to prosecute those involved in LeWinter's fraudulent scheme, but failed to do so. Macnamara Aff. p 25. They further contend that the CIA and FBI may have been involved in efforts to prevent those prosecutions. Id.; First Am. Compl. pp 51, 52.

In July and August 2000, plaintiffs filed FOIA requests with ten federal agencies and agency components, seeking the expedited release of documents relating to the abovedescribed events.¹ Shortly thereafter, they filed a complaint in the United States District Court for the District of Columbia, charging that the agencies had wrongfully withheld the requested records. See 5 U.S.C. 552(a)(4)(B). Plaintiffs also filed a motion for a preliminary injunction directing the agencies to expedite the processing of the FOIA requests. See id. 552(a)(6)(E). In September 2000, the district court denied the request for preliminary injunctive relief, Al-Fayed v. CIA, No. 00-cv-2092 (D.D.C. Sept. 20, 2000), and plaintiffs returned to the agencies to supplement the administrative record and to seek expedition through administrative appeals. Two months later, after amending their complaint, plaintiffs filed a second motion asking the court to issue a preliminary injunction requiring expedited processing. The court again denied the motion. Al-Fayed v. CIA, No. 00-cv-2092 (D.D.C. Dec. 11, 2000) ("December Opinion").²

In its December 2000 opinion, the district court concluded that none of the factors relevant to granting preliminary relief pointed in plaintiffs' favor. Plaintiffs could not show that: (1) they had a substantial likelihood of success on the merits; (2) they would suffer irreparable injury if the injunction were not granted; (3) granting the injunction would not injure other parties (for example, those requestors over whom plaintiffs would take precedence if the injunction were issued); or (4) the public interest would be furthered by the injunction. Id. at 4, 13-16. The court focused primarily on the first factor--plaintiffs' likelihood of success--and noted that under FOIA, plaintiffs are entitled to expedited processing of their requests only if they demonstrate a "compelling need" for expedition. 5 U.S.C. 552(a)(6)(E)(i)(I). As a threshold matter, the court determined that it should not review de novo the agencies' findings concerning "compelling need," but rather should apply "an 'abuse of discretion' or 'arbitrary and capricious' standard of review." December Opinion at 6. Applying that standard, the district court concluded that the agencies did not abuse their discretion in determining that there was no "compelling need" for expedited processing. Id. at 13.³

II

Plaintiffs appeal the district court's December 2000 denial of their motion for a preliminary injunction requiring expedited processing of their FOIA requests. The only issue before this court is whether those requests qualify for expedited treatment under the statute. Because the agencies have not yet completed processing the document requests themselves, the sufficiency of their searches for responsive documents, as well as the merits of any exemptions from production they might eventually claim, are not before us.

As the district court noted, in considering a plaintiff's request for a preliminary injunction a court must weigh four factors: (1) whether the plaintiff has a substantial likelihood of success on the merits; (2) whether the plaintiff would suffer irreparable injury were an injunction not granted; (3) whether an injunction would substantially injure other interested parties; and (4) whether the grant of an injunction would further the public interest. See, e.g., Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998). We "review the district court's weighing of the preliminary injunction factors under the abuse of discretion standard, and its findings of fact under the clearly erroneous standard. [T]o the extent the district court's decision hinges on questions of law, however, our review is essentially de novo." Id. at 1318 (citations and internal quotations omitted). On this appeal, the parties principally dispute the first factor--whether plaintiffs have a substantial likelihood of success on the merits. For the reasons stated in the district court's opinion, we agree that the other factors counsel against granting plaintiffs relief. See December Opinion at 14-16. Accordingly, our decision regarding plaintiffs' likelihood of success on the merits will effectively decide whether plaintiffs are entitled to a preliminary injunction. See Serono Labs., Inc., 158 F.3d at 1326.

Plaintiffs raise two challenges to the district court's decision that they are unlikely to succeed on the merits. First, they argue that the court applied an improperly deferential standard of review to the agencies' determinations that there is no "compelling need" for expedited treatment. Plaintiffs claim that the court should have reviewed those determinations de novo--anew, without any deference to the agencies. Second, plaintiffs contend that there is in fact a "compelling need" for expedited treatment, and that the court therefore erred in denying them preliminary relief. The Reporters Committee for Freedom of the Press, joined by other public interest organizations, has filed an amicus curiae brief supporting plaintiffs' contention that de novo review is required, but taking no position as to whether expedited review is warranted in this case. We consider the appropriate standard of review--both for the district court and for this court--in this Part, and the application of that standard to plaintiffs' request for expedition in Part III.

A

The standard of review to be applied by a district court to agency expedition determinations is a question of law, which this court must itself decide de novo. Id. at 1318. The district court concluded that it should apply the deferential standard set forth in the Administrative Procedure Act (APA), which empowers a reviewing court to set aside agency action only when it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." December Opinion at 8 (quoting 5 U.S.C. 706(2)(A)). The APA, however, "provides a default standard of judicial review ... where a statute does not otherwise provide a standard." Dickson v. Sec'y of Def., 68 F.3d 1396, 1404 n.12 (D.C. Cir. 1995); see Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1467 (D.C. Cir. 1995). In this case, FOIA sets forth its own standard of judicial review, rendering the APA standard inapposite.

In 1996, Congress amended FOIA to provide for expedited processing of requests for agency records. See Electronic Freedom of Information Act Amendments of 1996, Pub. L. 104-231, 8, 110...