Citizens for Responsibility & Ethics in Washington v. United States Department of Justice
2017 U.S. App. LEXIS 1690
| D.C. Cir. | 2017Background
- CREW (Citizens for Responsibility and Ethics in Washington) sued DOJ/OLC under the Administrative Procedure Act (APA), alleging OLC failed to satisfy FOIA §552(a)(2) (the "reading-room" provision) by not publishing certain OLC opinions and indexes.
- CREW sought an injunction requiring OLC to: (1) prospectively disclose future opinions, (2) affirmatively publish without individual requests, (3) make documents available to the public (not just CREW), and (4) publish an index of covered documents.
- OLC defended that many opinions are protected by attorney-client and deliberative-process privileges and that it makes individualized publication decisions; it also argued FOIA provides an adequate remedy so APA review is barred by 5 U.S.C. §704.
- The district court dismissed CREW's APA claim, holding FOIA provides an adequate alternative remedy; CREW appealed to the D.C. Circuit.
- The D.C. Circuit considered (a) what relief FOIA authorizes under §552(a)(4)(B) for violations of §552(a)(2), and (b) whether FOIA is an "adequate remedy" barring APA review under §704.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether courts can order relief under FOIA to compel publication/making available to the public under §552(a)(2) | CREW: FOIA enforcement alone does not allow public-facing prospective relief; APA is needed to require public publication and indexing | DOJ: FOIA's remedial scheme (de novo review and injunctive powers) is an adequate remedy; APA review is barred | Court: Under FOIA §552(a)(4)(B) a court may order prospective relief and require disclosure to a plaintiff, but may not order an agency to "make available for public inspection" (i.e., publish to the public) or force public indexing; FOIA is nevertheless an "adequate remedy" precluding APA review under §704 |
| Whether a district court may issue a prospective injunction requiring an agency to affirmatively disclose future records under §552(a)(2) | CREW: Such an injunction is necessary and available under APA | DOJ: FOIA alone suffices and FOIA remedies should preclude APA relief; FOIA can provide prospective/injunctive relief to a requester | Court: District courts can grant prospective injunctive relief and require affirmative disclosure to the plaintiff in FOIA suits (per precedent) |
| Whether a court can order an agency to publish records to the general public or only to the requesting party | CREW: Court can and should order public publication to satisfy §552(a)(2) | DOJ: FOIA remedial provision focuses on relief to complainants, not the general public; public publication is beyond §552(a)(4)(B) authority | Court: Ordering publication to the public is beyond the court's authority under §552(a)(4)(B); courts may order production to the complainant only |
| Whether FOIA provides an "adequate remedy" that bars APA suits under 5 U.S.C. §704 | CREW: FOIA relief is not adequate because it cannot force public-facing publication/indexing; APA is necessary | DOJ: FOIA provides de novo review and injunctive relief to the complainant, so it is an adequate, specific remedial scheme | Court: FOIA is an "adequate remedy"—it supplies an express private cause of action, de novo review, and injunctive powers sufficient to preclude APA review under §704 |
Key Cases Cited
- Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1 (1974) (FOIA remedial provision does not limit courts' equitable powers in FOIA cases)
- Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) (courts cannot order production of records not in agency possession)
- Payne Enters. v. United States, 837 F.2d 486 (D.C. Cir. 1988) (upheld prospective injunctive relief to prevent recurrent FOIA denial practices)
- Kennecott Utah Copper Corp. v. Dep't of Interior, 88 F.3d 1191 (D.C. Cir. 1996) (§552(a)(4)(B) does not authorize courts to order publication under §552(a)(1); FOIA relief aims at complainant's injury)
- Irons v. Schuyler, 465 F.2d 608 (D.C. Cir. 1972) (reading-room provision enforceable without a prior specific §552(a)(3) request)
- Bowen v. Massachusetts, 487 U.S. 879 (1988) (APA §704 bars APA review where Congress provided special and adequate alternative remedies)
- Brown v. Plata, 563 U.S. 493 (2011) (federal courts possess broad equitable powers when federal law and the public interest are implicated)