Case Information
*2 Before: S ENTELLE , Chief Judge , G RIFFITH , Circuit Judge , and R ANDOLPH , Senior Circuit Judge .
Opinion for the Court filed by Circuit Judge G RIFFITH .
G RIFFITH , Circuit Judge : This is the latest in a line of cases in which we are asked to decide whether a unit within the Executive Office of the President is covered by the Freedom of Information Act, 5 U.S.C. § 552 (2006). In this case, we conclude that the Office of Administration is not because it performs only operational and administrative tasks in support of the President and his staff and therefore, under our precedent, lacks substantial independent authority.
I.
Citizens for Responsibility and Ethics in Washington (CREW) alleges that the Office of Administration (OA) discovered in October 2005 that entities in the Executive Office of the President (EOP) had lost millions of White House e-mails. In April 2007, CREW made a FOIA request of OA asking for information about the missing e-mails. CREW sought records about the EOP’s e-mail management system, reports analyzing potential problems with the system, records of retained e-mails and possibly missing ones, documents discussing plans to find the missing e-mails, and proposals to institute a new e-mail record system. OA agreed to produce the records but asked CREW to either limit the scope of the request or set a new timetable, protesting that it could not meet FOIA’s timeframe for expedited requests given the broad scope of the inquiry. CREW responded that its request was not so broad as OA supposed and held fast to its demand that the documents be produced within FOIA’s time limits. When the deadline passed and OA had not turned over the records or even provided an anticipated date for doing so, CREW filed this action in May 2007.
In June 2007, the parties agreed to a timeline for producing the records, but within weeks OA changed course and told CREW, for the first time in this dispute, that it is not covered by FOIA because it provides administrative support and services directly to the President and the staff in the EOP, putting it outside FOIA’s definition of “agency.” Even so, OA produced some of the records, but only, in its own words, “as a matter of administrative discretion.” Letter from Carol Ehrlich, Freedom of Information Act Officer, Office of Admin., to Anne Weismann, CREW (June 21, 2007). OA refused to turn over the bulk of the potentially responsive records—more than 3000 pages.
In August 2007, OA took its argument to the district court and filed a motion for judgment on the pleadings. CREW opposed the motion, asserting, among other things, that discovery was needed on the jurisdictional question whether OA is covered by FOIA. The district court denied OA’s motion without prejudice and allowed CREW to conduct limited jurisdictional discovery to explore “the authority delegated to [OA] in its charter documents and any functions that OA in fact carries out.” Citizens for Responsibility & Ethics in Wash. v. Office of Admin. , No. 07- 964, at 6 (D.D.C. Feb. 11, 2008) (order denying motion for judgment and directing discovery). The court ordered discovery on whether “OA acts with the type of substantial independent authority that has been found sufficient to make” other EOP units “subject to FOIA.” Id. at 5. OA produced more than 1300 pages of records about its responsibilities, provided a sworn declaration by its general counsel, and submitted its director to a deposition.
Following discovery, the district court granted OA’s motion to dismiss CREW’s complaint for lack of subject matter jurisdiction, see F ED . R. C IV . P. 12(b)(1), concluding that OA is not an agency under FOIA because it “lacks the type of substantial independent authority” this court “has found indicative of agency status for other EOP components.” Citizens for Responsibility & Ethics in Wash. v. Office of Admin. , 559 F. Supp. 2d 9, 21 (D.D.C. 2008). For the same reason, the district court held in the alternative that CREW had failed to state a claim for relief, see F ED . R. C IV . P. 12(b)(6). On CREW’s motion for a stay pending appeal, the court ordered OA to preserve and keep in its control any records that might be responsive to CREW’s FOIA request.
CREW appeals the district court’s dismissal of the complaint and the limits placed on the scope of jurisdictional discovery. We have jurisdiction under 28 U.S.C. § 1291 (2006). We review de novo the district court’s grant of OA’s motion to dismiss. See Nat’l Taxpayers Union, Inc. v. United States , 68 F.3d 1428, 1432 (D.C. Cir. 1995). We review the district court’s limits on discovery for abuse of discretion. See Islamic Am. Relief Agency v. Gonzalez , 477 F.3d 728, 737 (D.C. Cir. 2007).
II.
Congress enacted the Freedom of Information Act in
1966 to provide public access to certain categories of
government records. The Act strives “to pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny.”
Dep’t of Air Force v. Rose
,
By its terms, FOIA applies only to an “agency,” and the
key inquiry of this appeal is whether the Office of
Administration is an agency under the Act. In the original
statute, “agency” was defined broadly as any “authority of the
Government of the United States . . . .” Administrative
Procedure Act, Pub. L. No. 89-554, § 551(1), 80 Stat. 378,
381 (1966) (codified as amended at 5 U.S.C. § 551(1)). In
1974, Congress amended the definition of “agency” to
include, more specifically, “any executive department,
military department, Government corporation, Government
controlled corporation, or other establishment in the executive
branch of the Government (including the Executive Office of
the President), or any independent regulatory agency.” 5
U.S.C. § 552(f)(1).
[1]
Although
the 1974 amendments
expressly include the EOP within the definition of “agency,”
the Supreme Court relied upon their legislative history to hold
that FOIA does not extend to “the President’s immediate
personal staff or units in the Executive Office [of the
President] whose sole function is to advise and assist the
President,”
Kissinger v. Reporters Comm. for Freedom of the
Press
,
However the test has been stated, common to every case
in which we have held that an EOP unit is subject to FOIA
has been a finding that the entity in question “wielded
substantial authority
independently of
the President.”
Sweetland v. Walters
,
(D.C. Cir. 1971). Similarly, we determined that the Office of Management and Budget (OMB) exercises substantial independent authority because it has a statutory duty to prepare the annual federal budget, which aids both Congress and the President. See Sierra Club v. Andrus , 581 F.2d 895, 902 (D.C. Cir. 1978). We noted that “Congress signified the importance of OMB’s power and function, over and above its role as presidential advisor, when it provided . . . for Senate confirmation of the Director and Deputy Director of OMB.” Id. We also held that the Council on Environmental Quality (CEQ) comes within FOIA because it “coordinate[s] federal programs related to environmental quality[,] . . . issue[s] guidelines to federal agencies for the preparation of environmental impact statements,” and “issue[s] regulations to federal agencies for implementing all of the procedural provisions of [the National Environmental Policy Act].” Pac. Legal Found. v. Council on Envtl. Quality , 636 F.2d 1259, 1262 (D.C. Cir. 1980).
By the same token, we have consistently refused to
extend FOIA to an EOP unit that lacks substantial
independent authority. We held that the Council of Economic
Advisors (CEA) was not covered by FOIA because it “has no
independent authority such as that enjoyed either by CEQ or
OST.”
Rushforth v. Council of Econ. Advisors
, 762 F.2d
1038, 1042 (D.C. Cir. 1985). Specifically, we noted that CEA
“has no regulatory power under [its] statute. It cannot fund
projects based on [its] appraisal, as OST might, nor can it
issue regulations for procedures based on the appraisals, as
CEQ might.”
Id.
at 1043. And although President Ronald
Reagan’s Task Force on Regulatory Relief comprised senior
White House staffers and cabinet officers whose agencies fall
under FOIA, we concluded that the Task Force was not a
FOIA agency because it lacked substantial authority
independent of the President “to direct executive branch
officials.”
Meyer
,
And in Sweetland , we held that members of the Executive Residence staff do not exercise substantial authority independent of the President because they only “assist[] the President in maintaining his home and carrying out his various ceremonial duties.” 60 F.3d at 854. Specifically, they “provide[] for the operation of the [residence]” by preparing meals, greeting visitors, making repairs, improving the rooms’ mechanical systems, and providing needed services for official functions. Id. Sweetland ’s analysis and disposition have special force in this matter because it involved an EOP unit that, like OA, provided to the President only operational and administrative support. Where that is the purpose and function of the unit, it lacks the substantial independent authority we have required to find an agency covered by FOIA. See id. (emphasizing that the “staff of the Executive Residence exercises none of the independent authority that we found to be critical in holding other entities that serve the President to be agencies subject to FOIA”).
OA’s charter documents created an office within the EOP to perform tasks that are entirely operational and administrative in nature. President Jimmy Carter proposed OA as the “base for an effective EOP budget/planning system through which the President can manage an integrated EOP rather than a collection of disparate units.” Reorganization Plan No. 1 of 1977, Message of the President, H.R. D OC . N O . 95-185 (July 15, 1977), reprinted in 5 U.S.C. app. at 661 (2006). OA “shall provide components of the [EOP] with such administrative services as the President shall from time to time direct.” Reorganization Plan No. 1 of 1977, § 2, 42 Fed. Reg. 56,101, 56,101 (July 15, 1977), reprinted as amended in 5 U.S.C. app. at 658 (2006), and in 91 Stat. 1633, 1633 (1977). President Carter ordered OA to “provide common administrative support and services to all units within [the EOP], except for such services provided [by the White House] primarily in direct support of the President.” Exec. Order No. 12,028, 42 Fed. Reg. 62,895, 62,895 (Dec. 12, 1977). However, OA “shall, upon request, assist the White House Office in performing its role of providing those administrative services which are primarily in direct support of the President.” Id. OA continues to exercise these same functions and duties today. See Office of Administration, http://www.whitehouse.gov/administration/eop/oa (last visited May 1, 2009) (“The organization’s mission is to provide administrative services to all entities of the [EOP], including direct support services to the President of the United States.”). Significantly, OA’s director is “not accountable for the program and management responsibilities of units within the [EOP]”; instead, “the head of each unit . . . remain[s] responsible for those functions.” Exec. Order No. 12,122, 44 Fed. Reg. 11,197, 11,197 (Feb. 26, 1979).
As its name suggests, everything the Office of
Administration does is directly related to the operational and
administrative support of the work of the President and his
EOP
staff. OA’s
services
include
personnel
management; financial management; data processing; library,
records, and information services; and “office services and
operations,
including: mail, messenger, printing and
duplication, graphics, word processing, procurement, and
supply services.” Exec. Order No. 12,028, 42 Fed. Reg. at
62,895. CREW contends that OA’s support of non-EOP
entities—including the Navy, the Secret Service, and the
General
Services Administration—undermines
the
government’s argument. But those units only receive OA
support if they work at the White House complex in support
of the President and his staff. Assisting these entities in these
activities is consistent with OA’s mission.
See Citizens for
Responsibility & Ethics in Wash.
,
CREW insists that OA is covered by FOIA because it thought itself so for nearly thirty years, complying with FOIA requests and even issuing regulations governing the process for producing records under the statute. In response, the government argues there has been on ongoing discussion in the Executive Branch questioning OA’s status under FOIA since at least 1995, when the district court in Armstrong v. Executive Office of the President , 877 F. Supp. 690 (D.D.C. 1995), considered the application of FOIA to the NSC. The government also points to a brief it filed in the district court in 2000 in a Privacy Act case, arguing that there was some doubt about whether OA was subject to FOIA because it lacked substantial independent authority. See Mem. in Support of Def.’s Mot. for Partial Summ. J. at 26 n.8, Barr v. Executive Office of the President , No. 99-1695 (D.D.C. Feb. 24, 2000).
The history of OA’s positions on the matter is of no
moment because we have been clear that past views have no
bearing on the legal issue whether a unit is, in fact, an agency
subject to FOIA. In
Armstrong
, we held that the NSC’s “prior
references to itself as an agency are not probative on the
question . . . whether [it] is indeed an agency within the
meaning of the FOIA.”
CREW raises two more arguments on appeal, neither of
which warrants reversal. Although the district court dismissed
the complaint for failure to state a claim under Rule 12(b)(6),
CREW argues the district court erred by also dismissing the
complaint for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1). We agree. CREW’s claims were not “so
insubstantial, implausible, foreclosed by prior decisions of
this Court, or otherwise completely devoid of merit” to
warrant “[d]ismissal for lack of subject-matter jurisdiction,”
Steel Co. v. Citizens for a Better Env’t
, 523 U.S. 83, 89
(1998). But this error does not require reversal. We “may
affirm on different grounds the judgment of a lower court if it
is correct as a matter of law.”
In re Marin
,
Finally, CREW contends that the district court abused its discretion by limiting discovery to jurisdictional issues. We give the district court much room to shape discovery. See, e.g. , Islamic Am. Relief Agency , 477 F.3d at 737 (explaining that the “district court has broad discretion in its handling of discovery”). CREW argues that the district court should have ordered OA to produce a variety of records, including documents disclosing OA’s organizational structure, OA staff manuals, all record disposition schedules OA submitted to the National Archives since 1977, any documents discussing OA’s retention of its records, all materials relating to OA’s implementation of FOIA, and the most recent information management plan. The record shows the district court allowed CREW to obtain more than 1300 pages of documents that shed light on OA’s authority and operations, an understanding of which is critical for determining whether OA is subject to FOIA. OA also submitted a declaration from its general counsel discussing the timeline of the government’s internal deliberations about its agency status, and it permitted OA’s director to be deposed and questioned by CREW attorneys about OA’s history of compliance with FOIA, its interactions with federal agencies, and the duties OA performs. The district court appropriately refused CREW’s discovery requests that did not speak to the question whether OA is an agency, that involved issues already addressed in the record, or that pertained to matters not in dispute. We conclude that the district court provided CREW ample opportunity to obtain materials exploring whether OA is an agency under FOIA.
III.
For the foregoing reasons, we hold that OA need not comply with CREW’s requests because it is not an agency under FOIA. The judgment of the district court is
Affirmed.
Notes
[1] President Franklin Delano Roosevelt created the EOP through the authority granted him by Congress. See Reorganization Act of 1939, ch. 36, 53 Stat. 561 (1939). He submitted two reorganization plans to Congress that set forth the EOP’s structure. See Reorganization Plan No. I of 1939, 4 Fed. Reg. 2727 (July 1, 1939), reprinted in 5 U.S.C. app. at 527 (2006), and in 53 Stat. 1423 (1939); Reorganization Plan No. II of 1939, 4 Fed. Reg. 2731 (July 1, 1939), reprinted in 5 U.S.C. app. at 534 (2006), and in 53 Stat. 1431 (1939). President Roosevelt intended that the EOP would “reduce the difficulties of the President in dealing with the multifarious agencies of the executive branch and assist him in distributing his responsibilities as the chief administrator of the Government by providing him with the necessary organization and machinery for better administrative management.” Reorganization Plan No. I of 1939, Message of the President, reprinted in 5 U.S.C. app. at 531 (2006). Today, the EOP is overseen by the President’s Chief of Staff and consists of temporary and permanent units that help the President develop and implement his policy agenda, manage the functioning of the executive branch, and communicate