987 F.3d 207
2d Cir.2021Background
- NYLAG sued the Board of Immigration Appeals (BIA) under FOIA after the BIA declined to post its non‑precedential ("unpublished") opinions to an electronic reading room, seeking publication of all unpublished BIA decisions since Nov. 1, 1996, and going forward.
- NYLAG relied on FOIA’s affirmative disclosure provision, 5 U.S.C. § 552(a)(2), which requires agencies to “make available for public inspection in an electronic format” certain categories of documents (including "final opinions ... and orders").
- The BIA denied the request as overbroad, contending (inter alia) that unpublished opinions are not § 552(a)(2) "final opinions" and that FOIA’s remedial provision, § 552(a)(4)(B), authorizes production only to the requester rather than public posting.
- The district court dismissed, adopting a narrow reading of § 552(a)(4)(B) (relying on CREW I), and declined to reach whether the opinions fall within § 552(a)(2) or whether posting would be unduly burdensome.
- The Second Circuit vacated and remanded, holding that § 552(a)(4)(B) authorizes district courts to enjoin agencies to comply with § 552(a)(2) (including ordering public posting), but left questions about coverage and burden for the district court to decide.
- The opinion produced a separate dissent (Judge Park), which would have followed the D.C. Circuit and held that the only FOIA remedy is production to the complainant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FOIA § 552(a)(4)(B) authorizes courts to order agencies to make records publicly available to enforce § 552(a)(2) | § 552(a)(4)(B) contains two independent powers: to enjoin withholding and to order production; courts can enjoin withholding so as to require public posting under § 552(a)(2). | The final clause "from the complainant" limits the remedy: courts may only order production to the requester, not public posting. | Held: § 552(a)(4)(B) authorizes district courts to order injunctions enforcing § 552(a)(2), including requiring public posting; vacated and remanded. |
| Whether BIA’s unpublished opinions are "final opinions ... and orders, made in the adjudication of cases" under § 552(a)(2) | NYLAG: unpublished BIA decisions meet § 552(a)(2) and must be posted. | BIA: many unpublished opinions are not § 552(a)(2) "final opinions/orders." | Not decided on appeal; Second Circuit assumed arguendo and remanded for district court to resolve in the first instance. |
| Whether requiring the BIA to post decades of unpublished opinions is unduly burdensome or requires tailored relief | NYLAG: public posting is necessary for parity in immigration representation; relief can be phased. | BIA: enormous workload (hundreds of thousands of opinions; redaction burden; multi‑year undertaking) makes full retrospective posting infeasible without limitation. | Not decided on appeal; remanded for district court to craft equitable relief mindful of burden and timeline (possibly prospective relief first). |
| Whether APA § 704 provides an alternative remedy if FOIA relief is unavailable | NYLAG sought APA relief as alternative. | District court held FOIA provided adequate remedy, so APA relief unavailable. | Second Circuit did not resolve APA claim because it held FOIA authorizes the requested relief; left open if needed. |
Key Cases Cited
- Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Justice, 846 F.3d 1235 (D.C. Cir. 2017) (CREW I) (held FOIA remedy limited to production to requester; district court relied on this decision below)
- Animal Legal Def. Fund v. U.S. Dep’t of Agric., 935 F.3d 858 (9th Cir. 2019) (ALDF) (held § 552(a)(4)(B) authorizes courts to order public posting to enforce § 552(a)(2))
- Kennecott Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191 (D.C. Cir. 1996) (analyzed whether "production" includes "publication" and construed remedial scope narrowly)
- U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) (discusses FOIA’s mandatory disclosure obligations and scope)
- Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1 (1974) (addresses equity powers in FOIA and remedies available in court)
- Madsen v. Women’s Health Ctr., 512 U.S. 753 (1994) (equitable relief must not be more burdensome than necessary; cited for remedy tailoring on remand)
- Stone v. INS, 514 U.S. 386 (1995) (principle that Congress’ amendments should be given real and substantial effect; cited in statutory‑evolution analysis)