Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA )
CAMPAIGN FOR )
ACCOUNTABILITY, )
)
Plaintiff, )
) v. ) No. 16-cv-1068 (KBJ) )
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
) MEMORANDUM OPINION
This lawsuit arises under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, but it is not the familiar sort of FOIA lawsuit that challenges an agency’s failure to produce records in response to a specific request from the plaintiff. Rather, plaintiff Campaign for Accountability (“CfA”) seeks an order requiring the Department of Justice’s Office of Legal Counsel (“OLC”) to comply with its obligation to make certain records available affirmatively , without the need for a prior request, pursuant to the FOIA’s seldom-litigated ‘reading-room’ provision, 5 U.S.C. § 552(a)(2). CfA alleges that the legal opinions that OLC provides on behalf of the Attorney General to various officials in the Executive Branch are subject to the reading-room provision either because OLC’s legal advice documents are “final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases[,]” id. § 552(a)(2)(A), or because they qualify as “statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register[,]” id. § 552(a)(2)(B). ( Compl., ECF No. 1, ¶ 31.) OLC has already made *2 many of its opinions (more than 1,300 of them) available to the public on its website; however, in the instant lawsuit, CfA seeks an order requiring OLC to make available all of its opinions that have precedential effect within the Executive Branch, as well as an index of those opinions. ( See id. ¶ 35.)
Before this Court at present is the government’s motion to dismiss CfA’s
complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (
See
Mem. in Supp. of Def.’s Mot. to Dismiss (“Mot.”), ECF No. 9-1.) In its motion, the
government argues that this Court lacks subject matter jurisdiction to entertain CfA’s
complaint because it seeks a type of relief that is beyond the scope of what the FOIA’s
remedial provision authorizes. (
See id.
at 19–23 (discussing 5 U.S.C. § 552(a)(4)(B)).)
[1]
The government also takes various doctrinal tacks under both Rule 12(b)(1) and Rule
12(b)(6) to press the argument that CfA’s claim is too broad and abstract for judicial
resolution. Specifically, the government asserts that the FOIA’s remedial provision
does not authorize broad injunctions that are not tethered to specific documents (
see id.
at 19–21); that FOIA claims that are not presented in a concrete factual setting are
constitutionally unripe (
see id.
at 23–27); and that CfA’s allegations fail to state a claim
upon which relief can be granted, because OLC opinions are not plausibly subject to the
reading-room requirement, at least at the level of generality that CfA’s complaint
identifies them (
see id.
at 29–31). In this regard, the government’s motion—and
indeed, CfA’s complaint itself—raises novel questions regarding how a plaintiff who
seeks to enforce the FOIA’s reading-room provision must present its claims.
*3
On September 29, 2017, this Court issued an order that
GRANTED
the
government’s motion to dismiss, and
DISMISSED
CfA’s complaint. ( ECF No. 18.)
The instant Memorandum Opinion explains the reasons for that order. In short, having
considered the parties’ arguments, and in light of the D.C. Circuit’s recent decision in
Citizens for Responsibility and Ethics in Washington v. Department of Justice
(
CREW
),
I. BACKGROUND
Because this case presents the question of whether OLC must make its legal opinions available for public inspection pursuant to the FOIA’s reading-room provision, the statutory framework that informs the Court’s analysis of that provision appears below. Following that recitation is a description of the role of OLC opinions within the Executive Branch, and an account of the various efforts—both by Plaintiff and by another similar organization, Citizens for Responsibility and Ethics in Washington (“CREW”)—to compel OLC to make its opinions available to the public.
A. Statutory Framework
Under the FOIA, this Court “has jurisdiction to enjoin [an] agency from
withholding agency records and to order the production of records improperly withheld
from the complainant.” 5 U.S.C. § 552(a)(4)(B). A FOIA complaint that seeks judicial
review of an agency’s withholding of records can allege that the government’s
withholding violates any one of the statute’s three disclosure requirements—sections
552(a)(1), (a)(2), or (a)(3).
See Kennecott Utah Copper Corp. v. U.S. Dep’t of the
Interior
,
§ 552(a)(3). The D.C. Circuit has referred to (a)(3) as the FOIA’s “reactive” disclosure
provision, because it requires an agency to produce records only “in response to
specific requests.”
CREW
,
A FOIA lawsuit may also accuse an agency of violating either one of the statute’s “two distinct affirmative disclosure obligations[,]” id. , which, unlike section 552(a)(3), require agencies to act proactively with respect to the publication of certain types of records and information; i.e. , the agency must disclose the records without waiting for a request. One of these two affirmative disclosure provisions, section 552(a)(1), pertains to information that agencies must “publish in the Federal Register for the guidance of the public[.]” 5 U.S.C. § 552(a)(1). The matters that an agency must publish in the Federal Register include “statements of the general course and method by which [an agency’s] functions are channeled and determined,” “rules of *5 procedure,” and “substantive rules of general applicability[,]” among others. Id. § 552(a)(1)(B)–(D).
This lawsuit arises under the FOIA’s
other
affirmative disclosure requirement,
which appears in section 552(a)(2)—the “so-called ‘reading room’ provision.”
Tax
Analysts v. IRS
,
The FOIA’s reading-room provision “represents an affirmative congressional
purpose to require disclosure of documents which have the force and effect of law.”
NLRB v. Sears, Roebuck & Co.
,
§ 552(a)(2)(A)–(C)—collectively “indicate that the primary objective is the elimination
of ‘secret law’”; that is, these requirements prevent an agency from subjecting members
of the public to a rule that the agency has not publicly announced.
U.S. Dep’t of Justice
v. Reporters Comm. for Freedom of the Press
,
Notably, even if a record is subject to one of the FOIA’s three disclosure
requirements, the FOIA permits an agency to withhold the record if it falls within one
of nine statutory exemptions. 5 U.S.C. § 552(b)(1)–(9). Of particular relevance to
this case, the FOIA’s Exemption 5 protects from disclosure “inter-agency or intra-
*7
agency memorandums or letters that would not be available by law to a party other than
an agency in litigation with the agency[.]”
Id.
§ 552(b)(5). To qualify for Exemption
5, a document “must fall within the ambit of a privilege against discovery under judicial
standards that would govern litigation against the agency that holds it.”
Dep’t of the
Interior v. Klamath Water Users Protective Ass’n
,
Significantly for present purposes, it is well established that Exemption 5
correlates with, and sheds light on, the scope of the FOIA’s reading-room provision.
Specifically, the Supreme Court has explained that courts generally should construe
Exemption 5 and the reading-room provision such that they do not overlap.
See Sears
,
B. Legal Opinions Of The Office Of Legal Counsel
“For decades, [OLC] has been the most significant centralized source of legal
advice within the Executive Branch.”
CREW
,
The Attorney General has delegated his authority to provide legal opinions to other Executive Branch officials to OLC. 28 C.F.R. § 0.25(a) (charging OLC with “[p]reparing the formal opinions of the Attorney General[,] rendering informal opinions and legal advice to the various agencies of the Government[,] and assisting the Attorney General in the performance of his functions as legal adviser to the President and as a member of, and legal adviser to, the Cabinet”). It is allegedly OLC’s “official view” that each of the legal opinions that it issues—whether formal or informal—is an “authoritative” statement of the law and is “binding” on the Executive Branch official to whom OLC issues the opinion “by custom and practice[.]” (Compl. ¶ 19 (quoting *9 Karl Remon Thompson, Principal Deputy Assistant Attorney General, Remarks at American Bar Association Conference (2014)); see also id. ¶ 21.)
OLC does not make all of its legal opinions available to the public, but with
respect to “formal written opinions[,]” which is “one particularly important form of
controlling legal advice” that OLC issues to Executive Branch officials, OLC “has a
longstanding internal process in place for regular consideration and selection of
significant opinions for official publication.” (Memorandum from David J. Barron,
Acting Assistant Attorney General, to Attorneys of the Office, Best Practices for OLC
Legal Advice and Written Opinions at 1, 5 (July 16, 2010) (“Best Practices Memo”),
Ex. 3 to Def.’s Mot. to Dismiss, ECF No. 9-5).
[4]
Pursuant to that process, OLC’s
“internal publication review committee” makes publication decisions after seeking input
from the authoring attorneys, from OLC’s front office, and from “the requesting
Executive Branch official or agency and any other agencies that have interests that
might be affected by publication[.]” (
Id.
at 5.) Furthermore, when making publication
decisions, OLC considers a variety of discretionary factors such as “the potential
importance of the opinion to other agencies or officials in the Executive Branch” and
“the likelihood that similar questions may arise in the future[.]” (
Id.
) OLC has
published over 1,300 opinions, dating from 1934 to the present.
[5]
*10
C. Attempts To Get OLC To Publicize Its Legal Opinions
On July 3, 2013, Anne Weisman, then Chief Counsel of Citizens for
Responsibility and Ethics in Washington, wrote to OLC to “request[] that [OLC]
immediately comply with its obligation under 5 U.S.C. § 552(a)(2) to make available
for public inspection and copying all OLC opinions that are binding on the executive
branch.” (Letter from Anne L. Weisman to Assistant Attorney General Virginia A.
Seitz (July 3, 2013) (“CREW Letter”), Ex. 1 to Def.’s Mot. to Dismiss, ECF 9-3, at 6;
see also
Compl. ¶ 26.) The letter quoted OLC’s Best Practices Memo, and noted OLC’s
practice of publishing only some, but not all, of its opinions. (CREW Letter at 6–7.)
The letter contended that OLC’s opinions must be made available for public inspection
under the FOIA’s reading-room provision, because OLC’s opinions “function as
binding law on the executive branch.” (
Id
at 7
.
) OLC responded that, in its view, FOIA
exempts OLC opinions from disclosure because they are “ordinarily covered by
[FOIA’s] attorney-client and deliberative process privileges” and as such are covered
by Exemption 5, and furthermore, OLC opinions are not subject to the reading-room
provision’s affirmative disclosure requirements because, “as confidential and
predecisional legal advice, . . . [they] constitute neither ‘final opinions . . . made in the
adjudication of cases’ nor ‘statements of policy and interpretations which have been
adopted by the agency.’” Letter from John E. Bies, Deputy Assistant Attorney General,
to Anne L. Weisman (Aug. 20, 2013),
quoted in CREW
,
CREW initially sued the Department of Justice under the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 701–06, seeking to use that statute’s judicial
review provision to compel OLC to comply with its obligations under the FOIA.
See
CREW v. Dep’t of Justice
,
On March 22, 2016, fifteen days after the district court decision in CREW , Ms. Weisman again wrote to OLC, this time as the Executive Director of Plaintiff Campaign for Accountability, and she again requested that OLC make its legal opinions available for public inspection. ( Compl. ¶ 24; Letter from Anne L. Weisman to Principal Deputy Assistant Attorney General Karl Remon Thompson (Mar. 22, 2016), Ex. 1 to Def.’s Mot. to Dismiss, ECF No. 9-3, at 1–3.) This second letter was “similar” to the previous letter (Compl. ¶ 26), insofar as it specifically requested that OLC make publicly available “all unpublished OLC opinions that provide controlling legal advice to executive branch agencies and a general index of all such opinions” ( id. ¶ 24). OLC responded by letter on May 26, 2016, reiterating its “continuing position that none of the opinions it issues are covered by the requirements of 5 U.S.C. § 552(a)(2).” (Compl. ¶ 25; see also Letter from John E. Bies, Deputy Assistant Attorney General, to *12 Anne L. Weisman (May 26, 2016), Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 9-4, at 1 (asserting that OLC opinions “generally” are not subject to the reading- room provision and are “ordinarily” exempt from disclosure under the FOIA’s attorney-client and deliberative process privileges).)
D. Procedural History
CfA filed its complaint in this lawsuit on June 8, 2016, challenging “OLC’s ongoing refusal to comply with its mandatory obligations under 5 U.S.C. § 552(a)[.]” (Compl. ¶ 28.) The complaint contains two counts: in Count One, CfA alleges that OLC’s years-long refusal to publish all of its binding opinions violates the disclosure provisions of the FOIA’s reading-room requirement, 5 U.S.C. § 552(a)(2). ( See id. ¶¶ 29–35.) In Count Two, CfA alleges that OLC has also failed to comply with the separate indexing requirement of section 552(a)(2)(E), by “fail[ing] for years to make available for public inspection and copying indices of all final opinions made by OLC in the adjudication of cases and statements of policy and interpretation that have been adopted by the agency.” ( Id. ¶ 38.) As relief, CfA seeks a declaration that both of these failures constitute violations of section 552(a)(2) ( see id. , Prayer for Relief, ¶¶ 1, 5), as well as an injunction requiring OLC to make available for public inspection and copying: (1) “all final opinions made in the adjudication of cases and statements of policy and interpretations that have been adopted by the agency”; (2) “all opinions issued by OLC that provide controlling advice to executive branch officials on questions of law that are centrally important to the functioning of the federal government”; (3) “all opinions issued by OLC that serve as precedent either within the OLC or within the executive branch, whether or not they are formal or informal opinions”; and (4) “indices of all final opinions made in the adjudication of cases and *13 statements of policy and interpretations that have been adopted by the agency[.]” ( Id . ¶¶ 2–4, 6.) Finally, the complaint requests “such other and further relief as the Court may deem just and proper.” ( Id. ¶ 7.)
The government has moved to dismiss the complaint under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), and that motion is now fully briefed. ( Mot.;
see also
Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Opp’n”), ECF No. 11; Reply Mem. in
Supp. of Def.’s Mot. to Dismiss (“Reply”), ECF No. 12.) In its motion, the government
argues, first, that CfA’s requested relief is not available because the FOIA’s judicial
review provision, 5 U.S.C. § 552(a)(4)(B), only authorizes courts to “order[] disclosure
of specific documents to individuals—not to order[] broad, prospective relief requiring
ongoing publication for the benefit of the broader public.” (Mot. at 21.) Second, the
government argues that Count One of the complaint must be dismissed on the grounds
that it “is not ripe for adjudication because it is too abstract for judicial resolution.”
(
Id.
at 23.) Third, the government argues that the complaint must be dismissed pursuant
to Rule 12(b)(6) on the grounds that CfA “does not plausibly allege any unlawful
failure to publish by OLC” because CfA’s complaint “does not identify any particular
advice documents that it believes fall within 5 U.S.C. § 552(a)(2)(A) or (B), but which
OLC has failed to disclose.” (
Id.
at 29–30.) In support of this last argument, the
government cites the D.C. Circuit’s decision in
Electronic Frontier Foundation v.
Department of Justice
(
EFF
),
CfA responds to each argument in turn, as detailed below. ( See infra Part III.) With respect to the government’s jurisdictional points, CfA focuses primarily on the fact that the FOIA gives courts broad remedial powers and that CfA is challenging OLC’s policy of refusing to publish its opinions, not its withholding of any particular opinion. ( See, e.g. , Opp’n at 18–20, 22–26.) CfA also holds fast to its position that the reading-room requirement applies to OLC’s controlling opinions because those opinions have binding legal effect. ( See, e.g. , id. at 9, 34, 39, 41–42.)
After the government’s motion was fully briefed, this Court stayed the instant case pending the D.C. Circuit’s decision in the CREW case. ( See Min. Order of Nov. 7, 2016.) The Circuit released its decision on January 31, 2017, see CREW , 846 F.3d 1235, and the parties then filed a Status Report explaining their views on the impact of that decision on this case. ( Joint Status Report, ECF No. 15.) CfA’s portion of the Status Report focuses on the fact that, per the CREW decision, the FOIA is indeed the proper avenue for enforcing the reading-room provision, and the relief available under the FOIA encompasses a broad, forward-looking injunction that is not limited to the production of individual documents. ( See id. at 1–3.) DOJ’s portion of the Status Report focuses on the fact that the CREW decision forecloses using a FOIA lawsuit to secure disclosure of documents to the general public, rather than to the plaintiff alone. ( See id. at 4.) DOJ also emphasizes that CREW did not change a plaintiff’s duty to present a FOIA dispute to the courts in a discrete fashion. ( See id. at 4–6.) *15 II. LEGAL STANDARDS
A. Motions To Dismiss Pursuant To Rule 12(b)(1) In The FOIA Context
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may seek
dismissal of a complaint due to “lack of subject-matter jurisdiction[.]” Fed. R. Civ. P.
12(b)(1). Under the FOIA’s judicial review provision, this Court “has jurisdiction to
enjoin the agency from withholding agency records and to order the production of any
agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B).
Because this provision uses the language of “jurisdiction” in erecting the boundaries of
a district court’s remedial powers under the FOIA,
id.
, Rule 12(b)(1) is the proper
avenue by which a defendant may urge the court to dismiss a complaint on the grounds
that it seeks a type of relief that the FOIA does not authorize.
See United States v.
Kwai Fun Wong
,
B. Motions To Dismiss Pursuant To Rule 12(b)(6) In The FOIA Context
Federal Rule of Civil Procedure 12(b)(6) authorizes a defendant to request
dismissal of a complaint if the pleading “fail[s] to state a claim upon which relief can
be granted[.]” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint
*16
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal
,
Notably, it is rare in FOIA cases for a court to grant a Rule 12(b)(6) motion to
dismiss that assails the
merits
of the plaintiff’s pleading—
i.e
., a motion that disputes
the sufficiency of the allegations underlying the claim for relief —and indeed, “FOIA
cases typically and appropriately are decided on motion for summary judgment.”
Liberman v. U.S. Dep’t of Transp.
,
By contrast, Rule 12(b)(6) packs a heavier punch in the context of lawsuits that arise under section 552(a)(2)—the reading-room provision—which, as mentioned above, is one the FOIA’s affirmative disclosure requirements. That is, unlike section (a)(3), which requires agencies to produce records in response to any proper request, see id. § 552(a)(3), the reading-room provision only requires agency action with respect to specific, statutorily delineated categories of records. See, e.g. , id. § 552(a)(2)(A) (requiring that agencies make publicly available “final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases”). Consequently, in order to state a claim that an agency has improperly withheld records that it was obligated to make public under section 552(a)(2), the complaint must identify particular records (or categories of records) that the agency has failed to publicize and that plausibly fit within one of the statutory categories. See Iqbal , 556 U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). In other words, if a complaint that asserts a violation of 5 U.S.C. § 552(a)(2) does not allege that certain identified records (or categories of *18 records) plausibly fit the statutory criteria for affirmative disclosure and yet have been withheld by the agency that maintains them, then such a complaint fails to assert that the agency has improperly withheld agency records, and as a result, is subject to dismissal under Rule 12(b)(6).
III. ANALYSIS
There are two strands to the argument that the government makes in support of
the dismissal of CfA’s complaint: first, the government invokes Rule 12(b)(1) to
maintain that this Court has no jurisdiction to order the relief sought in the complaint,
and in any event, this Court lacks jurisdiction because CfA’s primary claim is too
abstract to be ripe. ( Mot. at 19–27.) Second, the government relies on Rule
12(b)(6) to assert that CfA has not stated a plausible violation of the reading-room
requirement. (
See id.
at 27–48.) Because a federal court is “not free to pretermit the
question” of subject matter jurisdiction, even in a case where the plaintiff’s claims
ultimately founder on the merits,
Iqbal
,
A. This Court Has Jurisdiction To Order The Type Of Relief That CfA’s Complaint Seeks, And The Government’s Challenge To The Complaint’s Allegations Do Not Implicate Ripeness
1.
CREW
Forecloses The Argument That This Court Lacks
Jurisdiction To Order The Requested Remedy
The government begins with the established proposition that “a court’s power to
remedy an improper withholding [of records] is limited by FOIA’s remedial provision”
(Mot. at 20 (citing 5 U.S.C. § 552(a)(4)(B)), and it proceeds to argue that the FOIA’s
remedial provision does not authorize the type of injunctive relief that CfA is seeking in
this case (
see id.
at 19–23). Specifically, the government contends that CfA’s requested
injunction exceeds the boundaries of the FOIA in three respects: (1) it would apply
prospectively, “on an ongoing basis[,]” to OLC opinions not yet written (
id.
at 19);
(2) it would be “broad-ranging” rather than focused on specific records (
id.
at 22); and
(3) it would require “publication” of records to “the broader public[,]” rather than
production of records directly to CfA (
id.
at 21). The D.C. Circuit’s recent decision in
CREW
,
In
CREW
, just as in the instant case, the plaintiff “argued that OLC opinions are
subject to disclosure under the reading-room provision” of the FOIA,
First, the injunction would have prospective effect— i.e. , it would apply to opinions not yet written. Second, it would impose an affirmative obligation to disclose on OLC— i.e. , without need for a specific prior request. Third, it would mandate disclosure to the public , as opposed to just CREW. Fourth, it would require OLC to make available to the public an index detailing all documents subject to the reading-room provision.
Id. (emphasis in original). Moreover, the court’s analysis specifically addressed whether the FOIA’s remedial provision authorizes federal courts to award injunctive relief with those features. See id. at 1241–44.
Given the “broad equitable authority” that is entrusted to district courts under the
FOIA,
id.
at 1241, the
CREW
court “ha[d] little trouble concluding that a district court
possesses authority to grant” an injunction that contains the first two features of the
relief that CREW sought—“a prospective injunction with an affirmative duty to
disclose.”
Id.
at 1242. However, in the Circuit’s view, the third and fourth aspects of
CREW’s requested injunction— a requirement that OLC disclose
to the public
all
documents subject to the reading-room requirement and an index of those documents—
“present[ed] a trickier problem.”
Id.
Relying on a prior decision that had addressed the
scope of relief available for a claim under section 552(a)(1), the
CREW
court held that
because the FOIA’s remedial provision is “focus[ed] on ‘relieving the injury suffered
by the individual complainant[,]’”
The
CREW
decision provides a well-marked roadmap for analyzing the
government’s argument in the instant case that this Court has no jurisdiction to order
the relief that CfA seeks. ( Mot. at 19–23.) As to the government’s first quibble
with CfA’s requested injunction (
see id.
at 19 (complaining that the requested relief
would apply prospectively to OLC opinions not yet written)), the
CREW
case
unambiguously holds that “a district court possesses authority” under the FOIA to grant
“a prospective injunction” of the sort that CfA seeks.
As for the government’s argument that the FOIA does not authorize courts to
order that agencies make records available to the public at large (
see
Mot. at 20–21),
CfA acknowledges that the
CREW
case vindicates the government’s contention (
see
Joint Status Report at 3 (citing
CREW
,
Of course, the fact that such relief is available as a categorical matter does not answer the question of whether CfA is correct on the merits when it argues that such relief is warranted . See id. at 1246. But the fact that the type of relief that CfA seeks is available under the FOIA leads the Court to conclude that it has jurisdiction to consider that merits question, and thus the Court will not dismiss CfA’s complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
2. The Government Identifies A Pleading Failure, Not A Jurisdictional Ripeness Issue, When It Contends That CfA’s Primary Claim Is Too Abstract For Judicial Resolution The government argues that the breadth of CfA’s primary claim presents a ripeness defect, which the government frames as follows: “CFA’s lawsuit does not seek *24 to obtain access to or compel publication of any specific OLC advice documents, but instead presents only a broad legal claim—that OLC must publish all of its controlling advice documents, both past and future, pursuant to § 522(a)(2).” (Mot. at 23.) The government maintains that this is an “abstract legal question” that CfA has raised “at an exceedingly high level of generality— i.e. , whether OLC must affirmatively publish all of its controlling advice documents pursuant to 5 U.S.C. § 552(a)(2)”—and as such, the question “lacks sufficient factual foundation for judicial resolution.” ( Id. at 23–24.) But in this Court’s view, what the government has characterized as a jurisdictional “ripeness” problem is really nothing other than the sort of pleading failure that warrants dismissal under Rule 12(b)(6).
As an initial matter, the government’s arguments do not raise constitutional
ripeness concerns because there is no question that CfA has suffered an actual injury.
The D.C. Circuit has explained that, “if a threatened injury is sufficiently ‘imminent’ to
establish standing, the constitutional requirements of the ripeness doctrine will
necessarily be satisfied.”
Nat’l Treasury Emps. Union v. United States
,
The Court also concludes that CfA’s complaint does not present prudential ripeness concerns,
see Am. Petroleum Inst. v. EPA
,
Here, the thrust of the government’s “ripeness” argument is that, due to the
manifest implausibility of CfA’s contention that
all
of OLC’s controlling legal opinions
must be made available under the reading-room provision, CfA can only proceed if it
provides the Court with a concrete context (
i.e.
, a particular set of documents) that the
Court can evaluate in order to determine whether OLC has, in fact, engaged in unlawful
*26
withholding. (
See
Mot. at 24 (“To grant CFA the relief requested in this lawsuit, this
Court would have to determine that
all
of OLC’s controlling legal advice documents
fall within § 552(a)(2)(A) or (B), and that
none
of those advice documents are
privileged. It is difficult to see what basis the Court would have for making such
determinations in the abstract, and in the absence of concrete and granular facts about
the circumstances under which any given OLC legal advice document was prepared or
what role it played in an agency’s policymaking process.” (emphasis in original));
see
also id
. (“CFA’s claim is not ripe because it is not based on a concrete dispute over
particular documents.”).) But to this Court’s eye, a true prudential ‘ripeness’ defect has
a remarkably different appearance. It occurs, generally speaking, when the alleged
wrong
is insufficiently concrete—as a
factual
matter—to be capable of legal evaluation,
without regard to how the plaintiff’s complaint characterizes it. This can arise where,
for example, the plaintiff contends that the defendant has adopted an unlawful policy,
but the challenged policy has not been directly applied to the plaintiff or has not yet
come to fruition, and without that crucial context, the court is incapable of assessing
whether the defendant has, in fact, violated the law.
See, e.g.
,
Nat’l Park Hosp. Ass’n
v. Dep’t of the Interior
,
In the instant case, by contrast, there can be no doubt that CfA’s dispute with
OLC, while exceedingly broad, is an actual dispute arising from the direct application
of OLC’s established policy of making available only certain of its legal opinions, and
only at its own discretion. ( Compl. ¶¶ 18, 25–26.) CfA reached out to OLC,
*27
asserting that it is obligated under the reading-room provision to make available any
opinions that contain interpretations of law that are controlling within the Executive
Branch (
see id.
¶ 24), and OLC refused, citing its established policy (
see id.
¶¶ 25–26;
see also
Letter from John E. Bies, Deputy Assistant Attorney General, to Anne L.
Weisman (May 26, 2016)). Thus, CfA’s legal action presents a question of law that is
premised on the alleged fact that OLC has been applying a policy of not affirmatively
publishing all of its controlling opinions, which CfA claims is unlawful because all of
OLC’s controlling opinions are subject to publication under section 552(a)(2). There is
nothing abstract about this allegation. This Court knows exactly what the alleged
wrong is (violation of section 552(a)(2)) and how it is allegedly occurring (through
OLC’s policy of withholding of records);
i.e.
, no further factual development is needed
to ascertain the contours of the dispute. Moreover, there is nothing that prevents this
Court from determining whether CfA is right or wrong when it boldly contends that
“all” of the controlling legal opinions that OLC produces fit the (a)(2) criteria and thus
are being wrongfully withheld.
See Susan B. Anthony List
,
What it appears that OLC is actually saying with its “ripeness” contention is that
CfA cannot possibly mean what its complaint suggests—“that
all
of OLC’s controlling
legal advice documents fall within § 552(a)(2)(A) or (B)” (Mot. at 24 (emphasis in
original))—and that if the truth lies somewhere short of that—
i.e.
, that
some
OLC
opinions do—this Court cannot possibly identify which opinions must be made public
*28
“in the absence of concrete and granular facts about the circumstances under which any
given OLC legal advice document was prepared” (
id.
). In this way, the government
appears to fault CfA for seeking to advance a claim that is unduly categorical, when
OLC’s (a)(2) publication duties necessarily involve nuanced, contextual assessments of
the various types of legal opinions that OLC renders and the circumstances under which
it does so. (
See id.
) And
that
argument appears to identify a failure in CfA’s pleading
rather than the absence of a concrete underlying dispute.
Cf. Irons
,
B. The Complaint Must Be Dismissed For Failure To State A Claim Because It Does Not Plausibly Articulate A Category Of OLC Opinions That Must Be Affirmatively Disclosed The Court now turns to the government’s argument that CfA’s complaint must be dismissed pursuant to Rule 12(b)(6) because CfA “does not identify any particular advice documents that it believes fall within § 552(a)(2)(A) or (B), but which OLC has failed to disclose.” (Mot. at 30.) In order to survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must allege sufficient facts that, taken as true, permit “the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal , 556 U.S. at 678. As explained in Part II.B above, to meet this standard in the context of a lawsuit seeking records under the FOIA’s reading-room provision, a complaint must *29 identify ascertainable records or categories of records that are plausibly subject to the reading-room requirement and that the agency has failed to make publicly available.
In this case, CfA’s complaint alleges that OLC is violating the reading- room
requirement by not making available for public inspection “all final opinions made in
the adjudication of cases and statements of policy and interpretations that have been
adopted by the agency.” (Compl. ¶ 32 (citing 5 U.S.C. § 552(a)(2)(A) and (B)—
provisions that require agencies to make publicly available “final opinions, including
concurring and dissenting opinions, as well as orders, made in the adjudication of
cases,” and “those statements of policy and interpretations which have been adopted by
the agency and are not published in the Federal Register”).) CfA’s complaint gestures
to various categories of legal opinions that CfA alleges OLC has consistently failed to
make available in violation of the reading-room requirement—e.g., “those written
opinions issued by OLC that provide controlling legal advice to executive branch
officials and agencies on questions of law, whether formal or informal[;] those opinions
that serve as precedent within OLC and the executive branch[;] and those opinions that
serve as interpretive guides for the executive branch” (
id.
¶ 35)—and, notably, CfA
maintains that the “controlling” and “precedent[ial]” nature of such opinions are
common to all, or virtually all, of the legal opinions that OLC issues to Executive
Branch officials. (
See id.
¶¶ 18–22.) But binding D.C. Circuit precedent makes clear
that these features of an OLC legal opinion
do not
render it subject to the reading-room
requirement,
see EFF
,
*30 At the Court’s motion hearing, CfA suggested ways in which it could refine its claim, and as noted in Part III.B.2 below, the Court will provide CfA with an opportunity to do so. However, any amended complaint that CfA chooses to file must identify an ascertainable record or category of records that is plausibly subject to the reading-room requirement and that OLC has failed to make publicly available.
1. CfA Has Not Plausibly Alleged That OLC Opinions, As A General Matter, Are Subject To The Reading-Room Provision It is important to keep in mind that the subsections of the reading-room provision that are at issue in this case encompass “(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases[,]” and “(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register[,]” 5 U.S.C. § 552(a)(2)(A)–(B)— in other words, agency documents with “the force and effect of law.” Sears , 421 U.S. at 153 (internal quotation marks and citation omitted). In Electronic Frontier Foundation v. Department of Justice , the D.C. Circuit made clear that OLC opinions that contain OLC’s legal advice to Executive Branch officials—even “controlling” legal advice—do not necessarily constitute the “working law” of the recipient agency, 739 F.3d at 9, and in light of the Circuit’s analysis, it is clear to this Court that CfA has not identified records that OLC has failed to publicize and that plausibly fit within the reading-room provision.
(arguing that, “having failed” in its argument about the substantive reading-room provisions, “DOJ a fortiori must fail in its defense of why it can ignore entirely the FOIA’s indexing requirements”).) That is, just as CfA’s complaint fails to identify records that OLC was plausibly required to (but did not) make available to the public, so too has CfA failed to identify records that OLC was plausibly required to (but did not) index.
In
EFF
, a FOIA requester sought access to a legal opinion that OLC had
prepared for the Federal Bureau of Investigation (“FBI”) in connection with an inquiry
into the FBI’s information-gathering techniques.
Given those cases, as well as the Supreme Court’s decision in Sears , 421 U.S. 132, the EFF court reasoned that “the OLC Opinion could not be the ‘working law’ of the FBI unless the FBI ‘adopted’ what OLC offered[,]” because “OLC does not speak with authority on the FBI’s policy[.]” Id. at 9; see also id. (“OLC does not purport, and in fact lacks authority, to make policy decisions. OLC’s legal advice and analysis may inform the decisionmaking of Executive Branch officials on matters of policy, but OLC’s legal advice is not itself dispositive as to any policy adopted.” (quoting Decl. of Paul P. Colborn, Special Counsel, OLC)). The requester had argued that the OLC opinion at issue constituted the FBI’s “working law” because it was “controlling” and *32 “precedential,” but the EFF court rejected that argument, expressly stating that “these indicia of a binding legal decision do[] not overcome the fact that OLC does not speak with authority on the FBI’s policy[,]” and that “[e]ven if the OLC Opinion describes the legal parameters of what the FBI is permitted to do, it does not state or determine the FBI’s policy.” Id. at 9–10 (emphasis in original).
The
EFF
court’s conclusion that an OLC opinion does not constitute an
agency’s “working law” merely by virtue of being a “controlling” and “precedential”
statement of the legal constraints on an agency’s decision for Exemption 5 purposes is
fatal to the allegations that CfA makes in the instant complaint. As the Supreme Court
has explained, the reading-room requirement and Exemption 5’s deliberative-process
privilege are mirror images of each other; therefore, just as Exemption 5 does not
encompass records “which embody the agency’s effective law and policy,” the reading-
room provision requires disclosure of a loosely equivalent set of records—those
“documents which have the force and effect of law.”
Sears
,
§ 552(a)(2)[.]”). In line with this equivalency principle,
EFF
’s holding that an OLC
opinion does not necessarily amount to an agency’s own policy for purposes of
Exemption 5 simply by virtue of its being a “controlling” and “precedential” statement
of the applicable law,
see EFF
,
CfA attempts to resist the conclusion that the D.C. Circuit’s
EFF
decision dooms
its reading-room claims in two primary ways, but neither is persuasive. First, CfA
suggests that several of the prior D.C. Circuit decisions that the
EFF
opinion
distinguishes are actually more closely analogous to the instant case than
EFF
itself.
( Hrg. Tr. at 62 (referencing
Tax Analysts v. IRS
(
Tax Analysts I
),
In short, the documents at issue in those cases fell outside the scope of
Exemption 5—and likewise qualified as “statements of policy and interpretations which
have been adopted by the agency[,]” 5 U.S.C. § 552(a)(2)(B)—because the court
determined that they reflected the position of
the agency
itself. CfA cannot rely on
those cases to argue that the same is generally true of OLC opinions, when the D.C.
Circuit in
EFF
not only addressed each of those cases, but also specifically held that an
OLC opinion does
not
necessarily reflect the adopted policy of the agency that requests
it.
See
CfA’s second effort to sideline the
EFF
decision is also unavailing. At the
Court’s motion hearing, CfA appeared to argue that
EFF
was actually a narrow decision
that pertained only to situations in which OLC advises agencies on their
policy
decisions, not situations in which OLC provides agencies with
legal interpretations
.
( Hrg. Tr. at 90 (“[W]hat was important in the
EFF
case is that they weren’t talking
about a controlling interpretation of law that was meant to bind the executive. They
*35
were talking about policy advice.”).) This distinction is important, CfA argues, because
OLC’s position on legal issues is authoritative within the Executive Branch, even if its
policy advice is not. (
See id.
) But in its valiant effort to differentiate the OLC opinion
at issue in
EFF
from the OLC opinions that CfA says it is seeking in the instant case,
CfA perceives a distinction where none exists. This is because
a ll
of OLC’s opinions
constitute “the opinion of the Attorney General on questions of law[,]” 28 U.S.C. § 512;
see also id.
§§ 511, 513; therefore, OLC’s opinions
always
advise on legal questions,
even if the agency that receives an OLC opinion will use it to inform a policy decision.
To be sure, the
EFF
case itself references OLC’s lack of authority to determine the
FBI’s “policy,”
see e.g.
,
Ultimately, this Court reads the
EFF
decision to foreclose CfA’s attempt to point
to the ‘controlling’ and ‘precedential’ nature of certain OLC opinions as the identifying
features of the category of records that OLC is wrongfully withholding because they are
subject to the reading-room requirement. ( Compl. ¶ 35.) To the contrary, the
EFF
decision establishes that an OLC opinion does not become the “working law” of the
agency that requested it merely by virtue of the fact that it espouses a “controlling”
legal interpretation,
2. The Sub-Categories Of OLC Opinions That CfA Articulated During The Hearing Are Not Present In Its Complaint During the Court’s motion hearing, CfA deftly refined its contentions regarding OLC’s alleged violation of the reading-room requirement by identifying two discrete subsets of OLC opinions that, according to CfA, definitively constitute the recipient agency’s final position, and consequently qualify as ‘working law’ for the purpose of section 552(a)(2), such that they must be made available to the public. ( Hrg. Tr. at 10 (“[T]here are two subsets of those opinions for which it is particularly clear that they are intended to be binding interpretations of law[.]”).) Specifically, CfA highlighted (1) OLC opinions that resolve inter-agency disputes pursuant to an Executive Order that requires agencies to submit such disputes to the Attorney General, see Exec. Order No. 12,146, §§ 1-401 to 1-402, 3 C.F.R. 409 (1979), and (2) OLC opinions issued to independent agencies, for which OLC has a practice of requiring an up-front commitment from the agency “that it will conform its conduct to [OLC’s] conclusion[,]” (Best Practices Memo at 3). These delineated categories of records do not appear in CfA’s complaint as the basis for CfA’s claims. [12] Therefore, CfA’s oral assertion that, despite what the complaint alleges, these are the records that satisfy section 552(a)(2) cannot be the means by which CfA alleges a plausible violation of the reading-room provision. See Tele-Commc’ns of Key West, Inc. v. United States , 757 *37 F.2d 1330, 1335 (D.C. Cir. 1985) (“[A] Rule 12(b)(6) disposition must be made on the face of the complaint alone.”).
Be that as it may, to the extent that CfA maintains that it will be able to cure the fatal pleading defect that the government and the Court have identified, the Court will permit CfA to amend its complaint to add allegations of specific, ascertainable categories of records that CfA believes are subject to the reading-room requirement and that OLC has failed to make publicly available. If CfA chooses to amend its pleading, it should keep in mind that it must allege that OLC has withheld the records that CfA has identified—it is not clear from the allegations in CfA’s complaint as it currently stands, or from the Best Practices Memo, that OLC is not already making available all OLC opinions that have been issued in the context of inter -agency disputes or to independent agencies. Moreover, any amended complaint should clarify which portion of the reading-room provision OLC allegedly violates by withholding certain OLC opinions from the public. [13] Notably, this Court’s grant of leave to amend the complaint (which is a matter of discretion in this context, see Brink v. Cont’l Ins. Co. , 787 F.3d 1120, 1128–29 (D.C. Cir. 2015)) is unrestricted, insofar as it authorizes CfA to tender an amended complaint that alleges that OLC is violating the reading-room requirement with respect to additional discrete subsets of its opinions, aside from the two that CfA has already mentioned.
IV. CONCLUSION
In this lawsuit, CfA seeks to enforce the ‘reading-room’ provision of the FOIA, which requires agencies to make certain categories of records “available for public inspection[,]” and with respect to those records, to maintain and make available “current indexes[.]” 5 U.S.C. § 552(a)(2). For the reasons explained above, this Court concludes that it has subject matter jurisdiction to award a type of relief that CfA seeks: a broad, prospective injunction requiring that OLC affirmatively produce to CfA records that are subject to the reading-room requirement. But the Court also finds that, in order to state a claim that OLC has violated the reading-room provision of the FOIA, CfA needed to identify an ascertainable set of records that plausibly fits within one of the statutory categories and that OLC has failed to make publicly available and index. CfA has failed to do this, and as a result, with its Order of September 29, 2017, the Court both GRANTED the government’s motion to dismiss, and DISMISSED CfA’s complaint. The Order that issues today in conjunction with this Memorandum Opinion permits CfA to file an amended complaint that alleges that discrete subsets of OLC opinions are subject to the reading-room requirement, if it chooses to do so, and sets a deadline for both the submission of a new complaint and the government’s response to that amended pleading. Ketanji Brown Jackson
DATE: October 6, 2017 KETANJI BROWN JACKSON
United States District Judge
Notes
[1] Page-number citations to the documents that the parties have filed refer to the page numbers that the Court’s electronic filing system automatically assigns.
[2] Before Congress amended the FOIA in 1996 to transition agencies toward electronic recordkeeping, see Electronic Freedom of Information Act Amendments of 1996, Pub L. No. 104-231, 110 Stat. 3048, most agencies fulfilled their obligations under section 552(a)(2) by placing records in a literal reading room—hence the moniker. See generally Office of Information Policy, FOIA Guide, 2004 Edition: FOIA Reading Rooms , U.S. Dep’t of Justice (May 2004), https://www.justice.gov/oip/foia -guide-2004- edition-foia-reading-rooms.
[3] When the Supreme Court decided all of the cases cited in this paragraph, the reading- room provision
contained only three sub-parts—5 U.S.C. § 552(a)(2)(A)–(C).
See Sears
,
[4] The Best Practices Memo is discussed in detail in CfA’s complaint (
see
Compl. ¶¶ 18, 31), and the
Court deems the complaint to “necessarily rel[y]” on that memorandum such that the Court may
consider it at the pleadings stage.
See Abraha v. Colonial Parking, Inc.
,
[5] Office of Legal Counsel,
Opinions
, Dep’t of Justice (June 5, 2016), http:// www.justice.gov/olc/
opinions-main (linking to 1,309 opinions). This Court c an take judicial notice of the fact that material
has been posted to a government website.
See Cannon v. District of Columbia
,
[6] Rule 12(b)(6) is frequently (and properly) utilized in the FOIA context to seek dismissal for f ailure to
exhaust administrative remedies,
see, e.g.
,
Carroll v. U.S. Dep’t of Labor
,
[7] Of course, an agency may ultimately establish the propriety of the challenged withholding by
demonstrating that any of FOIA’s nine exemptions applies.
See
5 U.S.C. § 552(b)(1)–(9). But an
agency bears the burden of establishing the applicability of an exemption,
see Am. Civil Liberties
Union v. U.S. Dep’t of Def.
,
[8] “While it might seem strange for Congress to command agencies to” make certain documents
available for public inspection pursuant to the FOIA “without in the same statute providing courts with
power” to order that agencies do so, “that is exactly what Congress intended” by “authoriz[ing] district
courts to order the ‘production’ of agency documents, not ‘publication.’”
Kennecott
,
[9] Nor does Article III of the Constitution present any such jurisdictional obstacle, for the reasons explained infra Part III.A.2. ( See Mot. at 23 (arguing that CfA’s complaint must be dismissed as unripe under Rule 12(b)(1) on the grounds that it “does not seek to obtain access to or compel publication of any specific OLC advice documents, but instead presents only a broad legal claim”).)
[10] The Supreme Court has recently cast doubt on whether the prudential ripeness doctrine is a viable
limitation on the jurisdiction of federal courts.
See Susan B. Anthony List v. Driehaus
,
[11] CfA’s indexing claim fails for the same reason, because the Court agrees with the government that that claim is “entirely derivative” of CfA’s primary FOIA claim. (Mot. at 49; see also Opp’n at 22
[12] The complaint does make a passing reference to OLC’s role in resolving inter-agency disputes ( see Comp. ¶ 16), but nowhere does the complaint suggest that OLC’s opinions in such cases are the opinions that must be made available pursuant to section 552(a)(2).
[13] In particular, if CfA chooses to allege that OLC’s withholding of its opinions that resolve inter- agency disputes constitutes a violation of section 552(a)(2)(A), CfA should address whether those are opinions issued “in the adjudication of cases[,]” as that phrase is used in the FOIA. 5 U.S.C. § 552(a)(2)(A). Furthermore, if CfA chooses to allege that OLC’s withholding of its opinions issued to independent agencies constitutes a violation of section 552(a)(2)(B), CfA should address whether the up-front commitment that OLC demands from the recipient agency amounts to anything more than a promise to treat OLC’s opinion just as it would be treated by a non-independent executive agency.