Citizens for Responsibility & Ethics in Washington v. U.S. Department of Justice
164 F. Supp. 3d 145
D.D.C.2016Background
- CREW (Citizens for Responsibility and Ethics in Washington) asked DOJ/OLC to publish all OLC legal opinions that CREW contends are binding on the executive branch under FOIA § 552(a)(2).
- DOJ/OLC responded that most OLC advice is confidential (attorney-client / deliberative process privileges) and that publication is governed by an internal, case-by-case process and by responses to individual FOIA requests.
- CREW sued, but amended its complaint to seek relief only under the Administrative Procedure Act (APA), alleging DOJ’s § 552(a)(2) noncompliance was arbitrary and capricious.
- DOJ moved to dismiss, arguing FOIA supplies an adequate (exclusive) remedy for alleged § 552(a)(2) violations and thus APA review is precluded; the motion raised other defenses the court did not reach.
- The district court held that FOIA, not the APA, is the proper vehicle to enforce § 552(a)(2), and that FOIA provides an adequate remedy (including de novo review under § 552(a)(4)(B)), so CREW’s APA-only suit must be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an alleged failure to comply with FOIA § 552(a)(2) may be challenged under the APA | CREW: APA § 706 authorizes review of agency failures to proactively publish under § 552(a)(2); FOIA relief under (a)(3)/(a)(4)(B) would not address the duty to continuously publish | DOJ: FOIA provides the appropriate and adequate remedy; enforcement belongs under FOIA (individual requests or § 552(a)(4)(B) suits), so APA review is precluded | Court: FOIA supplies the remedy; APA suit is improper. Dismissed. |
| Whether FOIA plaintiffs must first file individual requests under § 552(a)(3) to enforce § 552(a)(2) | CREW: § 552(a)(2) imposes a proactive publication duty distinct from (a)(3); (a)(4)(B) relief would not substitute | DOJ: Enforcement of (a)(2) occurs through the FOIA request-and-review framework under (a)(3)/(a)(4)(B) | Court: A suit to enforce (a)(2) falls within FOIA and (a)(4)(B); plaintiffs need not always proceed via an (a)(3) request but FOIA is the proper vehicle and requests must seek identifiable records. |
| Whether FOIA’s remedy is adequate to preclude APA review because it cannot provide prospective/systemic relief | CREW: FOIA relief is reactive and limited to disclosure to specific requesters; it cannot compel ongoing publication | DOJ: FOIA’s remedial provisions and equitable powers (and related fee and disciplinary provisions) provide adequate relief | Court: FOIA affords de novo review and relief of the same genre; even if prospective remedies are limited, FOIA is an adequate (though imperfect) remedy precluding APA review. |
| Scope of district court equitable powers under FOIA to order prospective relief | CREW: Seeks injunction requiring OLC to publish all past and future qualifying opinions without specific requests | DOJ: Doubts FOIA permits such broad prospective injunctions | Court: Did not decide the full scope, but observed FOIA’s language and precedent support equitable powers; unnecessary to decide because FOIA nonetheless provides adequate remedy. |
Key Cases Cited
- American Mail Line v. Gulick, 411 F.2d 696 (D.C. Cir. 1969) (panel decision addressing whether a memorandum was disclosable under FOIA and discussing interplay of § 552(a)(2) and (a)(3))
- Irons v. Schuyler, 465 F.2d 608 (D.C. Cir. 1972) (clarifies that § 552(a)(2) claims are enforceable under FOIA and that requests must seek identifiable records)
- Kennecott Utah Copper Corp. v. Dep’t of Interior, 88 F.3d 1191 (D.C. Cir. 1996) (discusses FOIA categories and confirms § 552(a)(4) governs judicial review)
- Bowen v. Massachusetts, 487 U.S. 879 (1988) (APA review is unavailable where another adequate remedy exists)
- Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1 (1974) (courts retain broad equitable powers in enforcing FOIA)
- Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) (FOIA imposes no limits on courts’ equitable powers in enforcement)
- El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. HHS, 396 F.3d 1265 (D.C. Cir. 2005) (statutes that afford de novo district-court review preclude APA review)
- Envtl. Def. Fund v. Reilly, 909 F.2d 1497 (D.C. Cir. 1990) (discusses exclusivity of statutory review versus APA)
- Women’s Equity Action League v. Cavazos, 906 F.2d 742 (D.C. Cir. 1990) (situation-specific FOIA litigation is an adequate, though imperfect, remedy)
- Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (notes open question about scope of court authority to remedy § 552(a)(2) violations)