NEW YORK LEGAL ASSISTANCE GROUP v. BOARD OF IMMIGRATION APPEALS, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, UNITED STATES DEPARTMENT OF JUSTICE
No. 19-3248-cv
United States Court of Appeals for the Second Circuit
August Term, 2020. Argued: September 17, 2020. Decided: February 5, 2021
JACOBS, LYNCH, and PARK, Circuit Judges.
Plaintiff-Appellant New York Legal Assistance Group (“NYLAG“) seeks access to non-precedential “unpublished opinions” issued by Defendant-Appellee the Board of Immigration Appeals (“BIA“) in immigration cases. NYLAG wants to consult the opinions, which are not routinely made available to the public, to aid in its representation of low-income clients in removal and asylum proceedings. NYLAG asserts that the BIA‘s failure to make the opinions publicly available violates the agency‘s affirmative obligation under the Freedom of Information Act (“FOIA“),
We conclude that FOIA‘s remedial provision authorizes the relief NYLAG seeks. FOIA‘s text, read in light of its history and purpose, empowers district courts to order agencies to comply with their affirmative disclosure obligations under
Judge Park DISSENTS in a separate opinion.
SCOTT L. NELSON, Public Citizen Litigation Group, Washington, D.C. (Patrick D. Llewellyn, Public Citizen Litigation Group, Washington, D.C., Danielle Tarantolo, Jane Greengold Stevens, New York Legal Assistance Group, New York, NY, on the brief), for Plaintiff-Appellant.
BENJAMIN H. TORRANCE, Assistant United States Attorney, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY (Arastu K. Chaudhury, Assistant United States Attorney, on the brief), for Defendants-Appellees.
William N. Lawton, Eubanks & Associates LLC, Washington, D.C., for Amici Curiae The Animal Welfare Institute and Farm Sanctuary.
This case arises from the failure of the Board of Immigration Appeals (“BIA“) to make its non-precedential opinions publicly available. Such “unpublished opinions” constitute the vast majority of the final decisions issued by the BIA each year, and
NYLAG‘s request for access is based on the BIA‘s affirmative obligation under the Freedom of Information Act (“FOIA“) to “make available for public inspection in an electronic format . . . final opinions . . . [and] orders, made in the adjudication of cases.”
NYLAG sought relief in federal court under FOIA‘s remedial provision, which authorizes district courts to “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.”
This appeal asks us to determine the scope of FOIA‘s remedial provision—specifically, to decide whether it authorizes courts to enforce FOIA‘s affirmative disclosure obligations by ordering that documents be made available to the public. We conclude that it does. The text of FOIA‘s remedial provision and the 1974 amendment to it, considered in light of FOIA‘s history and purpose, make clear that Congress gave courts the authority to enforce an agency‘s obligation to make certain documents publicly available.
BACKGROUND1
I. The Freedom of Information Act
FOIA,
Second, and most relevant here,
Finally, the third obligation imposed by FOIA is the one most often litigated under the statute: under
FOIA also creates a private right of action in federal district court to enforce these obligations. Section 552(a)(4)(B), generally referred to as thе “remedial provision,” provides that:
On complaint, the district 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.
Finally, as relevant here,
II. NYLAG‘s FOIA Request
NYLAG is one of the largest providers of legal services to people in immigration proceedings in New York City. NYLAG provides low-income clients with a number of services, including direct representation in removal defense and in asylum proceedings.
The BIA, part of the Executive Office of Immigration Review (“EOIR“) of the Department of Justice, is tasked with interpreting and applying immigration law. The BIA hears appeals from cases decided by immigration judges and district directors of the U.S. Department of Homeland Security.
From 2012 to 2016, the most recent years for which numbers are available in the record, the BIA issued more than 30,000 decisions per year in individual cases. The vast majority of those decisions are “non-precedential,” meaning that, although they are binding on the parties, they are not binding on future immigration courts. The BIA designates only about 30 decisions a year as precedential, and therefore binding on future immigration courts. Such a designation requires a majority vote of the active members of the BIA.
EOIR discourages, but does not prohibit, parties from citing unpublished BIA decisions in immigration proceedings.6 Nevertheless, immigration judges and lawyers representing the government cite unpublished decisions in immigration proceedings.7 Moreover, despite the BIA‘s contention that it “discourages parties from citing” these opinions, Appellees’ Br. 17 n.3, the BIA itself has cited them in its decisions.8
NYLAG seeks access to unpublished BIA decisions so that it can use them in representing clients in immigration proceedings. On June 8, 2018, NYLAG requested, pursuant to
On September 10, 2018, NYLAG appealed the denial of its request to the Office of Information Policy (“OIP“) at the Department of Justice. NYLAG asserted that EOIR was required to publicly post in an electronic reading room all BIA opinions, including unpublished opinions, because they meet the definition of “final opinions . . . [and] orders, made in the adjudication of cases” under
III. Proceedings in the District Court
On October 17, 2018, after OIP‘s statutory deadline to respond to the appeal had passed,9 NYLAG filed suit in the Southern District of New York against the BIA, EOIR, and the Department of Justice (hereafter, collectively “the BIA“) pursuant to
On August 13, 2019, the district court granted the BIA‘s motion to dismiss. Citing a D.C. Circuit decision, Citizens for Responsibility & Ethics in Washington v. United States Dep‘t of Justice, 846 F.3d 1235 (D.C. Cir. 2017) (“CREW I“), the court concluded that “[w]hile the BIA may have an obligation to make available for public inspection certain opinions, this court only has jurisdiction to order the production of documents to the complainant.” J.A. 60 (citations omitted). The district court explained that it read FOIA‘s remedial provision—authorizing the court “to enjoin the agency from withholding agency records and to order the production of any agency recоrds improperly withheld from the complainant“—as a whole, such that “from the complainant” modifies the entire provision and authorizes the court to order production only to the complainant. The court further observed that even if the two clauses in the provision are read individually, “[t]he use of the term ‘withholding’ [in the first half] suggests, in the context of the statute, that the records were withheld from a complainant.” J.A. 63.
Because the district court concluded that it did not have the authority to order the remedy NYLAG sought, it did not decide whether the BIA‘s unpublished opinions were “final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases” within the meaning of
The district court dismissed the complaint. This appeal followed.
DISCUSSION
We review the grant of a motion to dismiss de novo, “accepting as true all factual claims in the complaint and drawing all reasonable inferences in the plaintiff‘s favor.” Singh v. Cigna Corp., 918 F.3d 57, 62 (2d Cir. 2019) (internal quotation marks omitted).12 The subject of our analysis is the question decided by the district court: what relief does FOIA‘s remedial provision empower district courts to order? Before reaching that question, we canvass the decisions of other circuits on the same point and consider whether they offer helpful guidance.
I. Decisions of Other Circuits
The question before us on appеal is one that has divided our sister circuits. The district court relied heavily on the D.C. Circuit‘s decision in CREW I to support its restrictive interpretation of FOIA‘s remedial provision and the BIA urges us to do the same on appeal. NYLAG refers us to Animal Legal Defense Fund v. USDA, 935 F.3d 858 (9th Cir. 2019) (“ALDF“), decided after the decision below, in which the Ninth Circuit reached the opposition conclusion, holding that FOIA empowers district courts to order agencies to make records available for public inspection. We consider each decision in turn.
In CREW I, the D.C. Circuit considered whether a district court could compel the Department of Justice‘s Office of Legal Counsel (“OLC“), which provides legal advice to the executive branch, to comply with FOIA‘s reading room provision by making electronically available existing and future OLC opinions. 846 F.3d at 1239. The court concluded that FOIA‘s remedial provision authorizes district courts to enter an injunction “requir[ing] disclosure of documents and indices only to [the plaintiff], not disclosure to the public.” Id. at 1244.13
While we appreciate the D.C. Circuit‘s analysis in CREW I, we do not find it persuasive for a number of reasons. First, both parties to the case “narrowly construe[d] FOIA‘s remedial provision,” assuming that, on its face, the text does not permit the court to order that documents be made available for public inspection. Id. at 1241. Consequently, the court spent little time parsing the text of the statute, and instead proceeded directly to considering whether courts had equitable authority to order the remedy CREW sought. Id. As described below, however, we find that the text of FOIA‘s remedial provision does support the position that courts may order the relief sought here. Therefore, we neеd not rely on the equitable power the D.C. Circuit rejected.
Moreover, the court in CREW I clearly considered itself bound by its prior decision in Kennecott Utah Copper Corp. v. U.S. Dep‘t of Interior, 88 F.3d 1191 (D.C. Cir. 1996), in which the D.C. Circuit held that courts do not have the power to order agencies to publish documents in the Federal Register, as required by
Finally, the D.C. Circuit itself appears to have reservations about the interpretation of the remedial provision expressed in CREW I. In a second case involving the same parties, the plaintiff sought the same relief under FOIA that the court had earlier denied under the APA. Citizens for Responsibility & Ethics in Washington v. U.S. Dep‘t of Justice, 922 F.3d 480 (D.C. Cir. 2019) (“CREW II“). In that case, the D.C. Circuit construed CREW I narrowly as turning on the fact that the plaintiff “improperly brought its claim under the Administrative Procedure Act,
For all of these reasons, we decline to follow the D.C. Circuit‘s decision in CREW I. We turn next to the Ninth Circuit‘s decision in ALDF, which we find more persuasive.
The Ninth Circuit concluded that the remedy plaintiffs sought was authorized by FOIA‘s remedial provision.16 The court began with the text of the provision and concluded that the words “mean what they say: FOIA authorizes district courts to stop the agency from holding back records it has a duty to make available” and order them to be made publicly available. Id. at 869. The court also noted that if the provision allowed courts to order the production of documents only to the complainant, “then the judicial-review provision would not need the words ‘jurisdiction to enjoin the agency from withholding agency records,‘” which would be superfluous. Id. at 870. The court turned next to the structure of FOIA, and relied on the fact that Congress made clear that the judicial review provision applies to all three parts of
adopt them in our own analysis, as set forth below.
But while the opinions of the other circuits that have addressed the issue are in many respects enlightening, in the end, they do not reflect a consensus. Rather, both circuits that have ruled, in apparently divergent ways, on the question before us appear divided, and their rulings are in any event not binding on us. Accordingly, we undertake our own independent analysis of the proper interpretation of FOIA‘s remedial provision. Based on that analysis, we conclude that the text, the context, the historical evolution, and the purpose of that provision all support the conclusion that Congress has authorized courts to order agencies to comply with the obligations Congress imposed on them in
II. FOIA‘s Remedial Provision
The provision at issue in this appeal authorizes courts “to enjoin the agency from withhоlding agency records and to order the production of any agency records improperly withheld from the complainant.”
The parties disagree, however, about the scope of relief available. NYLAG argues that the court may order relief that aligns with the affirmative obligation described in each paragraph of
A. Text
“Every exercise in statutory construction must begin with the words of the text.” Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003). The words of the text to be interpreted are not considered alone, however. Instead, we “look[ ] to the statutory scheme as a whole and plac[e] the particular provision within the context of that statute.” Id. If the text of the statute “is not entirely clear, we then turn to the broader statutory context and its history.” Khalid v. Sessions, 904 F.3d 129, 132 (2d Cir. 2018).
The district court concluded, apparently with little difficulty, that the text of
NYLAG contends, however, that the remedial provision‘s text should be read as containing two separate clauses: first, the district court has authority “to enjoin the agency from withholding agency records,” and second, the court is further empowered “to order the production of any agency records improperly withheld from the complainant.”
In contrast, the BIA argues that the text of FOIA‘s remedial provision should be read so that the final clause (“improperly withheld from thе complainant“) modifies the entire provision.18 Accordingly, the
Although neither parties’ reading is “wholly without force,” United States v. Epskamp, 832 F.3d 154, 162 (2d Cir. 2016), we find NYLAG‘s position more persuasive. On one hand, the phrase “to the complainant” appears somewhat redundant if it is not read to limit the court‘s power. However, “a coordinating junction like ‘and‘” is typically used for “linking independent ideas,” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 236 (2011), suggesting that Congress meant to authorize courts to exercise two independent powers, only the second of which would be modified by the phrase “to the complainant.”
Moreover, the syntax of the provision belies the BIA‘s argument. The conjunction “and” links two infinitives: “to enjoin” and “to order.” The phrase “from the complainant” appears in the phrase governed by the latter infinitive. If it were intended to modify “withholding” in the phrase governed by “to enjoin” as well as “withheld” in the second phrase governed by “to order,” that intention would have to be expressed by adding commas after “records” in the first infinitive phrase and “withheld” in the second, in order to take the words “from the complainant” out of the second infinitive phrase. Cf. Am. Int‘l Grp., Inc. v. Bank of Am. Corp., 712 F.3d 775, 781-82 (2d Cir. 2013) (explaining that “[w]hen there is no comma . . . the subsequent modifier is ordinarily understood to apply only to its last antecedent“).
Imagining the provision punctuated in that way, however, only emphasizes how stilted and unnatural the BIA‘s reading of the text is. If Congress intended the interpretation that the BIA proposes, it would be far more natural to draft the prоvision as: “to enjoin the agency from withholding agency records from the complainant, and to order the production of any agency records improperly so withheld.” While both parties’ readings are possible, NYLAG‘s interpretation seems to us by a good measure the more natural meaning of the language chosen by Congress.
The parties’ subsidiary arguments do nothing to alter that conclusion. First, both parties turn to the canon against superfluity, each arguing that its opponent‘s reading violates the “cardinal rule” that “instructs courts to interpret a statute to effectuate all its provisions, so that no part is rendered superfluous.” Hibbs v. Winn, 542 U.S. 88, 89 (2004). NYLAG asserts that the BIA‘s reading would render the first clause, granting courts the authority to “enjoin the agency from withholding agency records” superfluous, since the first provision would merely duplicate the relief authorized by the second clause. The BIA, in turn, argues that NYLAG‘s reading also creates superfluity – if the first clause in the provision allows a court to grant broad
NYLAG offers a variant on the superfluity argument that, at least in a marginal way, cuts in its favor. As NYLAG points out, courts often apply the rule that a word is known by the company it keeps in order to “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words.” Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (interpreting “communication” narrowly so as not to render “‘notice, circular, advertisement, and letter’ redundant“) (internal alterations omitted). Here, that rule suggests that the first clause is best read as providing a remedy distinct from that authorized by the second clause. See ALDF, 935 F.3d at 870. Though this argument has at least some merit, in the end we think that the arguments from superfluity on both sides add little or nothing to the textual analysis above.
Second, the parties dispute the meaning of the word “withholding” in the context of the provision. The BIA argues that, in context, the use of the word “‘withholding’ suggests . . . that the records were withheld from a complainant.” Appellee Br. 13 (quoting the district court‘s decision on the same point). The BIA also notes that elsewhere in the statute, the term “withholding” “is linked to a request for information rather than generally failing to making documents available to the public.” Appellees’ Br. 13, citing
In short, although neither party‘s interpretation of FOIA‘s remedial provision is entirely implausible, NYLAG‘s position is clearly the more persuasive one.
B. Context
We turn next to the broader context of the contested provision. The structure of the statutory scheme in which the remedial provision is embedded reinforces our conclusion regarding its proper interpretation. Although each party‘s structural argument has some merit, the structure of the statute on balance clearly provides stronger support to NYLAG‘s position.
The BIA begins by pointing out that the statute lays out administrative procedures and deadlines that an agency must follow in responding to “any request for records made under paragraph (1), (2), or (3)” of
Similarly, under
Somewhat more persuasively, NYLAG points out that the judicial review provision states that courts, in determining the scope of relief, must “accord substantial weight to an affidavit of an agency concerning the agency‘s determination as to technical feasibility under paragraph (2)(C).”
Even more persuasively, NYLAG argues that reading the statute as the BIA proposes, such that the only remedy available when an agency fails to provide records under §§
The BIA responds that its reading does not render the disclosure requirements toothless, because the proactive disclosure requirements contain their own enforcement mechanisms. Specifically, under
Although “we recognize that the last sentence in paragraph (2) does contain a sanction, . . . we feel it was not meant to be an exclusive one.” Am. Mail Line, Ltd. v. Gulick, 411 F.2d 696, 701 (D.C. Cir. 1969). First, the “sanction” within
C. Statutory Evolution
We next turn to the evolution of the text, and in particular to the 1974 amendment to FOIA‘s remedial provision. NYLAG asserts that this, too, supports its interpretation. We agree.
We begin by noting that the “record of enacted changes Congress made to the relevant statutory text over time[is] the sort of textual evidence everyone agrees can sometimes shed light on meaning.” BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting) (emphasis in original).23 “When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.” Stone v. I.N.S., 514 U.S. 386, 397 (1995). We may not adopt a “narrow[] application” of such an amendment if it will render Congress‘s efforts “an exercise in futility.” Pierce Cty., Wash. v. Guillen, 537 U.S. 129, 145 (2003).
The remedial provision of FOIA was amended in 1974, as part of a package of amendments to the statute. Originally, the remedial provision appeared in
Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, on request for identifiable records . . . shall make the records promptly available to any person. On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.
The 1974 amendment to the remedial provision retained the same wording - bеginning with “[o]n complaint . . .” – but moved the provision to a separate section,
We place little, if any, weight on the Senate Report‘s retrospective reflection on the original intent of the Congress that enacted FOIA in 1966. But its account of the intent behind the 1974 amendment itself is persuasive, because it corresponds to the very change being made in the structure of the statute by that amendment. Whether the amendment merely corrected an unintended glitch in the original language or effected a change, there can be little doubt that by relocating the judicial review provision Congress amended FOIA to make clear that judiciаl review is available when an agency fails to comply with any provision of
The BIA argues that its interpretation gives effect to this amendment by allowing members of the public to seek judicial review when documents are withheld under §§
If the only remedy available in a lawsuit for violation of §§
But Congress was not satisfied with that approach, and amended the statute to clarify that judicial review was available for violations of §§
D. Purpose
A broad reading of FOIA‘s remedial provision is also consistent with the statute‘s purpose. FOIA “was enacted to facilitate public access to Government documents.” U.S. Dep‘t of State v. Ray, 502 U.S. 164, 173 (1991), citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989). It “was designed ‘to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.‘” Id., quoting Dep‘t. of Air Force v. Rose, 425 U.S. 352, 361 (1976). “The affirmative portion of the Act . . . represents a strong congressional aversion to secret (agency) law.” N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975) (internal quotation marks omitted). Moreover, as the Supreme Court has “repeatedly stated[,] . . . [t]he policy of the Act requires that the disclosure requirements be construed broadly.” Dep‘t of Air Force, 425 U.S. at 366 (internal citation omitted).
Here, the BIA asks us to acquiesce to just such a system of “secret agency law” that systematically limits the access to information of parties opposing the government in immigration proceedings. It may be that, in order to rely on an unpublished decision in advocating against an opponent in the immigration courts,
Nor does the “non-precedential” nature of the “unpublished” opinions render them irrelevant. Every lawyer knows that the ability to cite non-binding authority can be hеlpful. Such decisions can illustrate concrete examples of a rule‘s application, show that impartial judges have adopted reasoning similar to that being advanced by the advocate, or demonstrate the continuing validity of an old case. It is one thing to cite a binding precedent for a general proposition and argue to the court that the logic of the general proposition applies to
The BIA asks us to construe FOIA‘s remedial provision narrowly. The fact that the BIA‘s narrow construction appears generally inconsistent with FOIA‘s purpose of opening government actions to public scrutiny is not itself controlling; no legislation pursues its general purpose to the furthest extreme, without consideration of opposing interests. But here the narrow construction for which the BIA argues is inconsistent with the specific requirement that Congress enacted, after weighing the interest in open government against other competing values. In enacting
III. Remaining Issues
For all of the forgoing reasons, we conclude that the remedial provision of FOIA,
The BIA‘s motion for summary judgment argued that its non-precedential orders are outside the coverage of
NYLAG seeks the public production of every unpublished BIA opinion dating back to November 1, 1996, during which time the BIA issued more than 750,000 such opinions, a majority of which are said to contain confidential information that must be redacted prior to public disclosure. J.A. 24-25, 27-28. According to the BIA, it would take four employees working full-time nearly seven years to prepare these opinions for publication. J.A. 30.
The breadth of NYLAG‘s request and the district court‘s authority to issue relief are distinct questions that should be analyzed separately. When responding to a FOIA request made under
A district court granting relief under
That said, such considerations are the stuff of decisions about the scope of equitable
CONCLUSION
For the reasons stated above, the judgment of the district court is VACATED, and the matter is REMANDED for further proceedings consistent with this opinion.
PARK, Circuit Judge, dissenting:
The Freedom оf Information Act‘s judicial-review provision grants courts the authority “to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.”
Today, however, the majority discovers a new judicial remedy in FOIA‘s review provision, requiring not just production to the requester, but publication to agency websites. To arrive at its conclusion, the majority invokes the traditional tools of statutory interpretation - textual “parsing,” structural analysis, and statutory history. But the majority‘s approach reads a single phrase expansively (“to enjoin [an] agency from withholding agency records“), which ultimately divorces it from what I think is a more straightforward understanding of the text, structure, and history of the statute.
First, the text of the review provision‘s two phrases should be read together, as mutually reinforcing, rather than as separate and independent grants of authority. Specifically, the provision permits courts to order agencies to stop withholding records and to produce them to complainants. In other words, the second phrase (requiring production to the complainant) specifies and complements the first (enjoining withholding). While this reading contains some redundancy, it gives effect to all parts of the provision. In contrast, the majority‘s novel interpretation treats the two as distinct remedial powers and allows the first phrasе to swallow the second.
The statutory structure also makes clear that the complainant, and not the general public, is the intended beneficiary of FOIA‘s judicial remedies. That is why the judicial-review provision allows courts to remedy informational injuries to particular requesters, not to enforce general agency compliance with the statute. The majority‘s approach, however, reads into the review provision a new form of relief that expands courts’ remedial power beyond the parties before them.
Finally, the statutory history highlights that Congress did not put the majority‘s remedy into the text of FOIA in 1966 or create it merely by reorganizing the statute in 1974. And no appellate court found otherwise for 45 years.
For these reasons, I would join the D.C. Circuit in holding that the only relief available under FOIA‘s judicial-review provision is the production of agency records to the plaintiff. I respectfully dissent.
I. BACKGROUND
FOIA provides that government agencies “shall make available to the public” information falling into three categories.
FOIA includes detailed procedures that agencies must follow in responding to “request[s] for records made under” the three disclosure provisions, including time limits and a right of administrative appeal.
On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.
In 1974, Congress amended FOIA to move the judicial-review provision from subsection (a)(3) to (a)(4). Act of Nov. 21, 1974, Pub. L. No. 93-502, 88 Stat. 1561. This was a reorganization, not a substantive alteration, and the provision‘s operative language has remained unchanged since FOIA‘s passage in 1966.
Here, NYLAG does not seek the well-established remedy for violations of FOIA‘s disclosure obligations - an injunction requiring an agency to produce described records to the requester. Indeed, NYLAG expressly disclaims that remedy, seeking instead a court order forcing the agency to post a searchable database of records to its website. App‘x at 12-13 (NYLAG‘s complaint, explaining that its “request was for the electronic public posting of unpublished BIA decisions . . . , not for the production of unpublished BIA decisions to NYLAG“). As the majority notes, the scope of NYLAG‘s request is staggering, covering hundreds of thousands of non-рrecedential BIA opinions totaling more than a million pages; the BIA estimates that compliance with the request would take four full-time workers nearly seven years just to apply redactions to the requested records. See App‘x at 28-31.
II. DISCUSSION
A. FOIA Does Not Authorize the Relief NYLAG Seeks
1. Statutory Text
The majority discovers a new publication remedy in FOIA‘s judicial-review provision, which gives courts “jurisdiction to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.”
First, the two phrases of the judicial-review provision should be read together as two aspects of the same remedy: (1) an order to stop withholding, and (2) a requirement to produce the materials withheld. Although they are redundant, they are reinforcing. “Sometimes the better overall reading of the statute contains some redundancy,” Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019), and Congress commonly “employ[s] a belt and suspenders approach,” Atl. Richfield Co. v. Christian, 140 S. Ct. 1335, 1350 n.5 (2020). That is precisely what Congress did with FOIA‘s review provision. The second part of the provision clarifies the first, giving courts explicit guidance about the specific form the remedy should take. Put differently, the first phrase is a negative command (“to enjoin . . . from withholding“), and the second is a positive one (“to order the production“) that explains how to accomplish the former.
According to the majority, the interpretations offered by the parties each render one pаrt of the review provision superfluous, so the arguments “cancel each other out.” Maj. Op. at 26. But that approach overlooks what is lost in each side‘s interpretation. Under the BIA‘s reading, the phrases are redundant but reinforce Congress‘s intent by removing doubt. Under NYLAG and the majority‘s reading, however, the first phrase swallows the second; if authority “to enjoin the agency from withholding records” means courts may require agencies to make records available in any number of ways, Congress had no reason to also give courts the authority “to order the production” of such records to “the complainant.” The two interpretations are thus not equally superfluous. The better reading is the agency‘s, which uses redundancy to reinforce meaning, and not the majority‘s, which renders one phrase entirely meaningless.
Second, stating that courts have “jurisdiction to enjoin the agency from withholding agency records” would be an odd way for Congress to grant courts authority to enforce compliance with the reading-room requirement of subsection (a)(2). In fact, the use of the negative framing coupled with the positive remedy of production to the complainant is another point in favor of the agency‘s interpretation: The two parts are complementary, with the first emphasizing the prohibited conduct and the second clarifying the form of relief. If Congress wanted to create a new, separate equitable power to order publication of records, it could have been more explicit - as indeed it was when specifying that courts could order the “production of any agency records improperly withheld.”
Third, the majority‘s reading unnaturally segregates the two parts of the judicial-review provision. The majority declines to limit
To the contrary, Congress used the word “withhold” twice, and a natural reading would give it the same indirect object (the “complainant“) both times. See Paroline v. United States, 572 U.S. 434, 447 (2014) (“When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.” (citation omitted)). After noting that courts have the power “to enjoin [an] agency from withholding agency records,” the review provision directs courts “to order the production of any agency records improperly withheld from the complainant.”
As the majority concedes, its decision is in conflict with the D.C. Circuit‘s holding in Citizens for Responsibility & Ethics in Washington v. United States Department of Justice (”CREW I“), 846 F.3d 1235 (D.C. Cir. 2017), that the only remedy available through FOIA‘s judicial-review provision is the production of records to the requester. CREW I was consistent with the statutory text, and I would follow the D.C. Circuit‘s approach. See Whitaker v. Dep‘t of Com., 970 F.3d 200, 206 (2d Cir. 2020) (noting the D.C. Circuit‘s “particular FOIA expertise“).
The majority finds CREW I unpersuasive because the D.C. Circuit “spent little time parsing the text of the statute.” Maj. Op. at 16. But in CREW I, the D.C. Circuit relied on its prior decision in Kennecott Utah Copper Corp. v. United States Department of Interior, 88 F.3d 1191 (D.C. Cir. 1996), which did engage in such an analysis. See CREW I, 846 F.3d at 1243; Kennecott, 88 F.3d at 1202-03. The majority casts this reliance as a deficiency, dismissing CREW I on the ground that the D.C. Circuit was bound by its prior decision in Kennecott. Maj. Op. at 17. But the majority hardly grapples with Kennecott, which considered the text of the statutory disclosure provision (in that case, subsection (a)(1)) and the judicial-review provision. See Kennecott, 88 F.3d at 1203. In other words, the majority faults CREW I for inadequate textual parsing and for relying on another case, when that other case did that textual parsing.2
In Kennecott, the D.C. Circuit carefully analyzed the statutory text and concluded that Congress did not intend the term “production” to include “publication.” 88 F.3d at 1203. It correctly noted that, although Congress required agencies to publish documents in subsection (a)(1), that requirement does not necessarily mean that Congress also gave courts the authority to order compliance. Id. at 1202-03 (“While it might seem strange for Congress
2. Statutory Structure
Congress did not include in FOIA the enforcement authority the majority divines from the review provision. That omission makes sense in light of the three ways Congress did provide for courts to address agency non-compliance with FOIA‘s disclosure obligations: Courts may (1) require the production of records to a particular complainant, (2) refer matters to the Office of Special Counsel for further investigation, and (3) prohibit agency reliance on undisclosed records. Each of these mechanisms is consistent with the individual nature of the judicially enforceable rights asserted by FOIA plaintiffs. See Kennecott, 88 F.3d at 1203 (holding that FOIA‘s judicial-review provision “is aimed at relieving the injury suffered by [an] individual complainant, not by the general public“).
First, production to the complainant redresses the informational injury FOIA‘s judicial-review provision was enacted to protect. This objective can be seen most clearly in the provision‘s interaction with FOIA‘s overall request procedure. All FOIA claims begin with a “request to [an] agency for records under paragraph (1), (2), or (3)” - i.e., records arguably covered by FOIA‘s three disclosure categories.
Second, Congress included in FOIA a Special Counsel provision triggered by harms to individual requesters, not the general public. Courts may refer matters involving improper withholding to the Office of Special Counsel only when they “order[] the production of any agency records improperly withheld from the complainant.”
Third, Congress imposed a judicially enforceable sanction for agency failures to publish records as required, thus furthering the reading-room provision‘s objective of protecting individuals from “secret law.” Records that must be made available to the public under subsection (a)(2) “may be relied on, used, or cited as precedent by an agency against a party other than an agency only if” they are published electronically or “the party has actual and timely notice of the terms thereof.”
The majority argues that the prohibition on using unpublished records does not prevent agencies from engaging in gamesmanship by selectively releasing records. Id. at 34. As proof, the majority cites a handful of instances in which the BIA has cited unpublished decisions. Id. at 9 nn.7-8. Such a sampling provides little empirical insight into the scope of the asserted problem. But even assuming for the sake of argument that the majority is correct, the efficacy of the enforcement mechanism does not bear on the question of statutory interpretation. See Nw. Airlines, Inc. v. Transp. Workers Union, 451 U.S. 77, 97 (1981) (“[T]he authority to construe a statute is fundamentally different from the authority to fashion a new rule or to provide a new remedy which Congress has decided not to adopt.“).
3. Statutory History
As part of its reorganization of FOIA in 1974, Congress moved the judicial-review provision from subsection (a)(3) to a separate subsection, (a)(4)(B). The majority states that this change reflected Congress‘s intent “to make clear that judicial review is available when an agency fails to comply with any provision of
This reads too much into the statutory history. Providing for judicial reviеw is not the same as expanding the scope of courts’ remedial authority, and the majority points to nothing else supporting its inferential leap. Indeed, the Senate report on which the majority relies states that the amendment was intended to clarify, rather than change, the scope of the judicial-review provision.3 See S. Rep. No. 93-854, at 8-9 (1974) (explaining that the amendment was intended to “lay . . . to rest” any misconception that “judicial review of a denial of information requested under subsections (a)(1) and (a)(2) was not available under the FOIA“).
If Congress had intended in 1974 to grant courts new authority to enforce compliance with subsections (a)(1) and (a)(2), it could have changed the provision‘s operative language to grant that power explicitly. For example, it could have authorized courts “to enjoin the agency from withholding agency records and to order compliance with respect to subsections (a)(1) and (a)(2), and to order the production of any agency records improperly withheld from the complainant with respect to subsection (a)(3).” But Congress did not do that, and the 1974 amendment did not
Finally, for 45 years, no appellate court held that the 1974 amendment did what the majority says it did. The Ninth Circuit in 2019 was the first to find that Congress had given courts the equitable authority to order compliance with subsections (a)(1) and (a)(2) back in 1974. See Animal Legal Def. Fund v. U.S. Dep‘t of Agric., 935 F.3d 858 (9th Cir. 2019). This suggests that the majority‘s statutory interpretation is not only novel, but contrary to FOIA‘s history.
B. Additional Relief Is Not Available Under the APA
NYLAG argues that even if it could not obtain injunctive relief through FOIA, it could still do so through
FOIA‘s judicial-review provision meets both standards. Plaintiffs dissatisfied with an agency‘s response to a FOIA request can seek plenary review in an Article III court with equitable authority to compel production of agency records. See
III. CONCLUSION
The majority today finds in FOIA‘s judicial-review provision an authority that is (1) not stated expressly in the statutory text, (2) inconsistent with the statutory structure, and (3) unsupported by the statutory history. By following the Ninth Circuit‘s decision in Animal Legal Defense Fund instead of the D.C. Circuit‘s decisions in CREW I and Kennecott, the majority joins the wrong side of a circuit split that the Supreme Court will need to resolve.
For these reasons, I respectfully dissent.