Roger W. Gale v. Cecil D. Andrus, Secretary, Department of Interior
643 F.2d 826
D.C. Cir.
1980
Check Treatment

*1 time he must be taken to have done so of the Armour, defendants in and the Su- change possible pub- preme Court’s reply that case must be statute, lished rate in the manner fixed reply our here: to which he must conform or suffer It may. be that such contracts should be 82, penalty fixed by law.” U.S. at recognized, giving stability to rates for at 436.9 S.Ct. periods; limited being contracts Petitioners’ argument simply serves published, filed and stipulat- and the rate significance presence illustrate the all, ed known open no injustice vel non of a statutory requirement But, said, would be done. as we have difficulty contracts be filed. The here is such considerations address themselves to that, precisely no provision such Congress, not to the courts. It is the contract, applied to this the clause in dis- province of the judiciary to enforce laws pute was made available neither to the pub- enacted, constitutionally not to make Hence, lic nor the disput- Commission. them to propriety suit their own views of just clause is of unpublished kind justice. contractual alteration of a tariff which the 82, 209 U.S. at 28 S.Ct. at 435. Act condemns. above, For the reasons we affirm stated Petitioners contend that the contract the order of the Commission. might actually price cause discrimina- It is so ordered. however, tion. This possibility, cannot alter our decision. As the Court in Armour

wrote,

It is said that if the carrier saw fit to

change the published rate contract the

effect will be to make the rate available

to all other shippers. But the law is not

limited giving rates equal by indirect

and uncertain provided methods. It has GALE, Roger Appellant, W. rate, for the establishing of one to be filed as provided, subject change provided, and that rate to be while in ANDRUS, Secretary, Cecil D. force only legal Any rate. other con- Department of Interior. struction of the statute opens the door to No. 79-1274. the possibility of the very abuses of un- equal rates which design it was the Appeals, United States Court statute to prohibit punish. District of Columbia Circuit. 209 U.S. at 28 S.Ct. at 435. Argued Jan. 1980. VI Aug. Decided 1980. petitioners believe, pub- a wise lic policy might permit encourage and even here, kind of contract at issue since the

purpose of that contract was to increase the

availability suppliers of program trans-

mission services and to enhance thereby

competition. But such was also belief suggest appended, light 9. Petitioners to which that “the fact that the this note is accepted, statutory plan permits Commission without comment or ob- the fact that the to tariffs jection kind, provi- go special approval the Midwestern tariff into effect without the Commission, requiring five-year persuaded peti- contract . . we are not should suggestion. affect our decision in this How- tioners’ case. ever, light reasoning paragraph of our *2 D.C., Parker, Washington,

Douglas L. for appellant. Canfield, Dept, of Jus Atty.,

Kenneth S. tice, D.C., with who Carl Washington, S. *, Sehaitman, U.S. Atty., Rauh and Leonard Scott, Dept, of Jus Joseph Attys., B. brief, tice, D.C., were on for Washington; appellees. MacKINNON, TAMM

Before Circuit OBERDORFER**, United Judges for the District of Judge States District Columbia. filed Circuit

Opinion Court' Judge MacKINNON. opinion by District

Concurring filed Judge OBERDORFER.

MacKINNON, Judge: Circuit sought injunc- Roger (Appellant) Gale compel tion in the district court pursuant (Appellee) of Interior the Freedom of Information (1976)(FOIA), to disclose cer- U.S.C. 552 to him which pertaining tain documents allegedly were collected and government of the Trust held that Pacific The court Islands. Act did not Freedom of Information for summary and denied motion Gale’s claim for lack judgment and dismissed his We affirm subject jurisdiction. matter government of grounds on (1) FOIA, (2) not included Act as must be to make the statute it, entitled applicable to exemption governments statutory it is even possessions territories and substantial control more removed from than are the posses- territories our traditional sions.

* ** by designation pursuant Sitting Attorney to 28 at the time the brief was 292(a). filed.

I. FACTS to disclose records maintained by the High Commissioner of the Trust Territory Gale is a citizen of the United States and and his subordinates that referred to Gale resided in the Trust formerly Thereafter, or the Friends of Micronesia. there, the Pacific Islands. While he be- moved summary judgment, lieved that he was to surveillance *3 the Department of Interior moved to dis- government through in- subject miss for lack of jurisdiction. matter monitoring of terception of his mail and his telephone sought calls. Gale to determine granted Depart- The district court being if records were him. To kept on this ment’s motion and denied Gale’s on three end, 16, 1977, letter of February he First, grounds. government it held that the Interior, requested Department from the of the Trust Territory’s supervising agency meaning with the 2 of the Ad- Section infra, United as explained in II all ministrative Procedure 5 U.S.C. 551 § files, (1) records in the Department includ- (APA). The term as defined ing by (2) those maintained the Trust Terri- section applies purposes of the FOIA. tory, the Office of Micronesian juris- Thus the court lacked matter Negotiations Status which referred him Second, assuming diction. or to organization known as “Friends of ment of the is an Trust Micronesia” with which he was associated. from cover- purposes, FOIA (Appellee’s 5) Addendum The of Ter- Office age under the virtue of the APA ritorial Affairs of the of Interi- Department exemption “governments of the territo- produced only one document from it ries or the United States.” files. it refused to search the 551(1)(C). the court § files of the of the Trust Terri- that “the laws of the do not United States tory or the Office Micronesian Status Trust automatically apply to the Negotiations, explaining to Gale that only but if or if specifically stated Department of Interior does not control the congressional expressed a clear intent is files of the Territory, and the Office the APA legislative history. Neither of Micronesian Negotiations Status main- congressional nor the FOIA evidence such tains its own files. 96) each one (App. appeals intention.” Gale holdings. these appealed Depart-

Gale this decision to the ment of Interior’s Freedom of Information 9, 1977, Act arguing Officer on March AND OF II. HISTORY STRUCTURE “the administrative structure of the Trust THE THE GOVERNMENT OF Territory, including High the offices TERRITORY TRUST General, Attorney Commissioner and the to as Mi- The area referred collectively a part of the of the Interior 2,000 cronesia islands and atolls covers over

and, therefore, possessed by that the files Ocean, including in the western Pacific officials agents and their must be Islands, Eastern and Western Caroline searched for the records which we seek.” the Marshall Islands. Between World War (Appellee’s 9) Addendum The Assistant Sec- governed by I were they and World War II retary appeal of the Interior denied Gale’s mandate. Japan League under a of Nations and attached a from the memorandum Of- 1947, In United fice of the explaining Solicitor entered into a Security Nations Council was a which the Trusteeship Agreement under legal scope outside the “administering became the (FOIA). the Freedom of Act Information accepted administrative authority” (Appellee’s 12-14) Addendum of Micronesia. sponsibility people

Having known as the “Trust Ter- exhausted his administrative This area became remedies, powers received filed this suit in The United ritory”. the district administration, jurisdic- court to compel legislation, of Interior provi- Secretary of the of the Order territory subject to tion over the Trusteeship 2918, execu- Agreement. part See II and has numerous § sions Japanese Man- Former Agreement for the in the Trust responsibilities 3301; 1947, 61 Islands, Stat. July dated authority pro- submit These include the T.I.A.S. No. to the of Mi- posed legislation [hereinafter As- In the General Agreement]. addition cronesia, power at part id. II Nations, Security sembly branch, 2 officials to the executive appoint each Trusteeship Council Council and 1973). (Supp. Territory Code in relation some function exercise the Chief Secretary appoints also the Charter Territory under High and Associate Justices Justice Nations, XII, XIII, 59 Stat. ch. IV, Court, judges are part id. at while other 1048-1051, Trusteeship Agreement, and the within by local administrators appointed 3301-3305. Stat. 5 Trust Territory government. *4 the re- assumed The United States also 251, 204, 301. The courts Code Territory §§ development promoting the sponsibility of jurisdiction, Alig general have in Micronesia of inhabitants self-government by of the Islands, of 3 Territory v. Trust the Pacific Art. 6.1 Ultimate the islands. Id. at (App.Div.1967), Reports 603 Territory remained Territory view of the Trust circum empowered are under some and Trusteeship hands of the United Nations Com High of to review actions the stances The Trustee- Security Council and Council. Department of People Saipan missioner. annu- ship to consider Council is authorized 1974), 90, (9th Cir. 99 of 502 F.2d be the al which must submitted reports 1445, 1003, 43 U.S. 95 S.Ct. 420 cert. petitions and examine accept United (1975). L.Ed.2d Territory, from the inhabitants the action, legislative the at At the time of this Id. Arts. periodically visit the Nations, House of 13; of a 4, Art. branch consisted Senate Charter of the United 2918, 1, 87, part III § Order Representatives, 59 Stat. 1050-51. locally. The whose were elected members delegated its Congress The United States has author- Congress of the Trust under responsibility administrative not be incon- may to enact laws which ity President, 48 Agreement to the Trusteeship agree- with or international sistent treaties 1681(a), delegated it to U. who then S.C. § States, laws of the ments of the United Order of Interior. Exec. to the applicable expressly 11021, 9, 1962). Reg. (May No. 27 Fed. Orders, or Orders of Executive Territory, a local The of Interior established Secretary 2918, Order of Interior. consisting of ex- government in Micronesia com- this suit part III 2. Since ecutive, branches. legislative judicial has been menced, system government 2918, Fed.Reg. 157 Order Secretarial toward Territory moves changed as the 27, (Dec. 1968) Order 2918]. [hereinafter Secretary of Pursuant to self-government. The of the Executive High Commissioner September No. Interior Order (of Territory) appointed Branch 25, 1978), (Oct. Reg. 49858 43 Fed. and con- President with the advice “Interim transition entitled sent United States Senate. developed constitution- supervi- locally based on general He is 1681a. cemed; give end shall to the Agreement, and to this

1. the Unit- Under the terms of territory progres- required the trust States is to: inhabitants of increasing sively in the administrative share development political foster the insti- of such territory; develop shall their services in the territory tutions as are suited to the trust government; give participation due shaii promote development shall of the inhabit- recognition of the inhabitants to the customs territory ants the trust toward self- territory; system providing of law for government independence, may ap- appropriate measures other and shall take propriate particular to the circumstances ends .... toward these territory peoples the trust 6(1). Trusteeship Agreement, Article freely expressed peoples wishes of the con- Islands”, of the Pacific States under the Agreement at legislative authority be- issue is primarily to nurture the Trust Ter- came vested in Interim ritory self-government. toward Of necessi- Micronesia, Federated States Palua ty, some laws United States’ could apply in Legislature, Islands, and the Ni- Marshall during Micronesia period trusteeship, tijela. and laws not be enacted by the Con- gress of the Trust that are incon- laws of the United do States sistent with the laws United States. not automatically apply to the To allow otherwise could cause serious diffi- they unless applicable made impediments culties and by Congress. administra- contends in Yet, tion the trust. if a proceeding that it treats court were to a political unit hold that all laws governing the actions of from the United States. toward its citizens within territorial limits

III. THE TRUST AGREEMENT Micronesia, should We hold that the when decision the district such extraterritorial our effect court is legally legal correct in its result and laws is not specifically mandated findings. However, detailing Agreement, before the Trusteeship place it would court, bases for affirming the district by judicial gov- decision in a emphasize essential to very one important posture involving ernmental the Trust Ter- greatly fact that *5 influences the determina- ritory that Nations in- never tion as to whether the of Mi- Government occupy. tended it to cronesia is agency, territory, an or posses- If one to appreciate fails the true charac- of the United States. The ultimate unique relationship pur- teristics of this of importance fact to this' Court is that the case, poses easy get of in lost authority entire of the United States intricacies of standard administrative law is derived from trust. a trying pigeonhole or label this And, it is very clear from II that it is a However, called believe “Micronesia”. we unique trusteeship arrangement dif- if of aspects relationship the trust fers widely any from of the traditional rela- emphasized, the law as set properly tionships of governmental entities. by opinion forth of the district court The real authority over the islands be applied can affirmed. mains in the United For all in- Nations. tents and purposes, acts United States IV. THE TRUST TERRITORY’S as only an for a principal. administrator NON-AGENCY STATUS Appellant’s in position largely the case is Act, 5 The Freedom of Information based on overemphasizing power of the 552, applies “agencies” to certain arrangement § United States and down of the United States as defined in 5 U.S.C. playing complete residual control which 551(1).2 Appellant is on argues the basis permanently vested in United Na- trusts, held tions. Like all must the amount character control there be a trus- tee to supervise management by Depart and exercised of the Yet, property government within the ment Interior over the trust. the authori- ty of the is is any greater trustee never than the Trust the latter an Territory that by that with which it “agency” was endowed under the agreement. trust The task of the United relevant statute. This issue is 2. The Government For not it is within or er (1) “agency” agency, purpose pertinent parts but does not include- of this the United means each subchapter- of that statute to review anoth- States, authority whether or provide: 5 U.S.C. possessions of the United States (C) ¤ 551(1)(C). governments of [*] [*] [*] the territories or [*] Hi change is a nor the Territory’s Micronesia status without the issue of whether from infra. possession, discussed territory Trusteeship the consent of Council must be determined Its status Nations. Id. at 1330. As in our the United of FOIA cov- evaluation before further II, recognized the Ninth Circuit part proceed. erage may arrange- which is basic to this trust status Thus, ment. the Ninth Circuit concluded maintains that Gale people, government the local of the Trust by the will of exists not statutes, virtue of United States but of the United States. Orders, of Inte Executive McComish, government relies on pervasive rior Orders and that actual on the status of the similarly places gloss is administrative control being “quasi-sovereign”. of Interior. exercised point on important the most argument, his relies authority As government’s argument differs which the States, on 533 F.2d 1376 Groves v. United though from is that even the United Gale’s (5th 1976), cert. 429 U.S. Cir. exercising government L.Ed.2d which S.Ct. under the statute and role the Trust Terri- supervising Agreement for pur is of the United States actually carrying is out collec- tory, it is 911. Section 911 the poses 26 U.S.C. § Micronesians, that of the tive will gross from income statute that excludes the United government or citizens which is received from that earned income persuasive. point We to be find States. States, except outside the United sources though Even the United States agency. paid by amounts instrumentality of administration is that even emphasized The Fifth Circuit (with supervision supervision ultimate objective of the Trust Terri though the end Nations), self- role Unit- tory Agreement promote the United government, incidental, as adminis the United since the totally ed States out a United tering authority, carrying Mi- is to assist the objective the trust *6 States function directed governmental cronesians, of whom are United States none 533 objective. the attainment of that F.2d citizens. that Ultimately, argues at 1384. by govern the upon The other case relied is an whether the Trust States, 496 F.2d v. ment is Porter United depends particu upon the United States the (Ct.Cl.1974), 420 cert. U.S. 583 FOIA, lar statute under review. The he (1975). The 43 L.Ed.2d 95 S.Ct. contends, broadly by should be construed being it was adminis Territory, Trust while this Court to cover the the Trusteeship Agreement, under the tered Territory. Trust a contractual and breached had entered into in The decision in is to that Groves contra Thereafter, con the agreement. private Rev- McComish Commissionerof Internal the to hold United tracting attempted party enue, (9th 1978), which 580 F.2d 1323 Cir. Ter the arguing contract States the the issue and the same discusses identical of the United States. ritory was an Code, provision in the Internal Revenue Trustee reviewed the The Court of Claims opposite arrives at an conclusion. The pur that its pointing out ship Agreement, Ninth Circuit discussed all of the facts rela- self-government was to foster pose Trusteeship the establishment of the Micronesians, under self-sufficiency terms, Agreement, man- and the actual Nations. of the United supervision agement government. It concluded di has retained States While United States does not “control” fields, as for in such rect control certain is Territory; of the Trust it affairs, daily eign administration McCom- entity. In shifted into largely has the islands ish the Court noted that the The Ter- government. local trusteeship hands cannot dissolve the ritory operates comprehen- under its own coverage from under the Ad- sive legal code. of the is- Inhabitants (APA). ministrative Procedure Act See lands Territory, are citizens not of 2, supra. agree note The parties that the the United States. technically is not a territory sistently schemes, however, the In the [*] framework of several held the Trust [*] [*] [*] courts [*] have con- statutory to be [*] or possession country is not vested with sovereignty over of the United Agreement since “foreign either country” something agree We with the conclusion of the dis- other than a “federal agency”. court, largely [Citations trict on the basis of our inter- pretation of the congressional omitted] intent indi- legislative history cated of the Ad- Id. at An point 588-89. essential ministrative Procedure Act. Various com- Court of contracting Claims that the explain ments that history that the Act though officials of the Trust Territory, specify agencies does not all to be ex- paid through funds, positions federal name, empted by but rather functional Territory, established as offices of the Trust report classifications. The the House not of the United States. Judiciary explained Committee The reasoning ap- court is Porter one been able to dem- agency has “[w]here plicable here. The officials of the Trust exempted, onstrate it should be all like Territory government, subjects of this agencies exempted general have been action, FOIA only empowered act H.R.Rep. Cong., 79th terms.” No. 2d with respect to local matters. is conced- It added). (emphasis Sess. Senator the Department all that of Interior McCarran, Chairman of Senate Judici- regard- must hand over documents it holds Committee, explained that ary also ing fact, request. In it did dis- “committee has from the poli- not deviated close all the files per- documents from its cy dealing with of functions types taining compulsion to Gale. such, and the bill in no case deals with the sepa- FOIA does not extend to by name.” agencies administrative rate files Cong.Rec. (1946). conclusion then ment, performing purely governmen- local follows that if it be admitted tal functions for non-United citi- is virtually identical the terri- zens. Although su- which the tories pervised sovereign, likewise it should never Depart- became associated with the coverage. from APA ment instrumentality aind never became an *7 of government. the United States Ninth this The Circuit addresses issue as applies Territory People it to the Trust in of reasons,

For foregoing the find that we Interior, Saipan Department the v. of 356 government of the Territory aff’d Therefore, F.Supp. (D.Haw.1973), of 645 as modified agency the United States. it (9th is F.2d grounds, not an on other 502 90 Cir. “agency” under the definition of 1974), cert. 420 95 “agency” in Administrative Proce- U.S. S.Ct. dure 551(1). (1975). 5 43 L.Ed.2d 761 Inhabitants of U.S.C. § enjoin Territory attempted an action to V. THE EXEMPTION FOR GOVERN- Territory’s High of Commissioner in MENTS OF OR TERRITORIES require he had not certain which followed POSSESSIONS of the Environmental Poli ments National 1969,42 seq. 4321 et The cy court Act U.S.C. § district next held that suit, assuming holding the Trust district court dismissed the Territory is an States, exempt was from exempt under that the Trust Territory 551(1)(C), posses or exempts territory § which APA review under the ments of or District possessions exemption. territories Court Both the not, when the Trust is empt, fact but Ninth Circuit and the removed from substantial technically the latter is more does not the United States than distinc- most by immaterial the United States is an control sovereignty have difference, and is on the a tion, possessions, without territories and a distinction Therefore, to ex- we self-government. intended Congress road to because, since is "like” terri- the Trust agencies, find that like clude 551(1)(C).3 the United possessions under be excluded tories and § should coverage is from Territo The similarities of Information Freedom 551(1)(C) of the possessions territories typical ry Act.4 Ap are self-evident. of the United States was explains that pellee OF STATUTORY VI. LACK SPECIFIC as Ameri same manner in the established INCLUSION most like Samoa, it has a structure can in IV the rationales Independent of has similar territorial should not be V, from the supervision kind of control APA or the comply with the required is su For Guam example, United States. specifically or Interior, and because neither statute pervised According Article 3 covers it. implicitly It would thus annul its laws. the United Trusteeship Agreement, this Court of the to for inconsistent highly territory trust apply to the “may are ex- hold that territories is the functions it holding Saipan latter warranted v. 3. This Court cited Bell, Ralpho performs suggests, but v. as the Board Interior courts, 1977), which, (D.C.Cir. auxiliary when it F.2d 616 n. of the status as an branch, Procedure stated that the “Administrative agencies are of the executive unlike term excludes territorial Act’s definition specifically excluded. 701(b)(1)(C) governments, 5 U.S.C. Id. at 1112. judicial defining section terms [the is a that Pickus statement Gale maintains APA], including portion view agencies from exclude that it will not Court Saipan Department of See they organi- coverage “like” APA Cf. v. United Porter expressly excluded. We find which are zations ..” We then held that the Micronesian reading very much into a far too that Gale distinguishable opinion. authority is an Unit- Commission Claims First, the Court never the Territo- ed States that is unconnected with to it. what Gale attributes stated Although quoted rial state- Government. Second, legisla- there substantial in Pickus dicta, persuasive Raipho we ment in find it is congressional history in- that indicated a indicating the manner in which the Court specifically exempt Department of tent to on a has of Micronesia characterized status case, Justice. In the instant prior occasion. legislative history was never mentioned very confusing presents Appellant APA, ar- 4. became effective since the APA by trying holding gument in Pic- Trusteeship Agree- our year 1946 one before Parole, F.2d kus v. United States Board of only assume that can ment was executed. We 1974) (D.C.Cir. In instant case. existed, the Con- would hold that had it reason Board Pa- Pickus we reviewed whether the exemp- gress would have included within found that is an under the APA and role having to amend rather than tion. 551(1)(A-H) em- exclusions of § none governmental when each new the FOIA emphasized Act braced the Board. We existence, opted for drafters comes into name, agencies by rather did not exclude by but specifi- agencies exempting to those all “like” functions, functions as this case *8 and “such Finally, cally exempted. did the Pickus court exempted”. presents F.2d at were not specifically Probation Service hold that the legisla- proceeded to show the 1111. We then performs exempt like it could not history to the APA runs counter (which exempt un- courts functions to the rationale, originally since the bill as Board’s 551(1)(B)), Ser- in this case the but that der § proposed specifically exempted the auxiliary exempt it an because was vice was Act, however, no such contains Justice. The the courts. exemption or the for either the clearly distinguishable we Pickus Because performs. Finally, held: it this Court functions exempting the preclude that it does not find unpersuasive argument of the We find 551(1)(C). 5 U.S.C. § because the Proba- Board that it exempt. exemption of tion Service is . pressly provided such of the laws the United so in the statute. We will may appropriate States as it deem to local not assume that the United States’ laws requirements.” conditions and The District apply holus-bolus to a interpreted Court Hawaii this mean striving territorial that is to- Congress must manifest an intent ei- self-government ward under the steward- legislative ther within the or in statute ship this nation. To do so would be to history to include the Trust for it ignore entirely purpose and limitations to be covered. People of Enewetak Agreement. Laird, (D.Haw.1973). 353 F.Supp. reasons, For the we affirm foregoing As noted by the district court instant District Court. case, the legislative history neither Judgment Accordingly. APA nor makes reference to Territory. The FOIA was enact- OBERDORFER, Judge, District concur- long Agreement after the Trusteeship ring : executed, and the APA definition of subsequent has been amended agree I Yet, Agreement. day both are sufficiently Pacific Islands is “like” a Terri- silent as to govern- tory of the qualify mental entities with its characteristics. exemption by 551(1)(C) operation of Section V, explained the fact the Freedom of Information though many excluded the purposes ter- other ritories evi- not be “like” a United States dences a strong to exclude Territory. intent that of concur Accordingly, I We are mindful sult. throughout opinion

ment the United States acted toward only such,

Micronesia as a trustee. As hold,

fully consistent to as did the United Hawaii,

States District Court for

laws only United States could

to the Trust if Territory Congress had ex-