United States Court of Appeals, District of Columbia Circuit
Citizens for Responsibility and Ethics in Washington, Appellant
United States Department of Justice, et al., Appellees
Argued: December 5, 2016
from the United States District Court for the District of
Columbia (No. 1:13-cv-01291)
B. Morrison argued the cause for appellant. With him on the
briefs was Adam J. Rappaport.
L. Nelson and Rachel M. Clattenburg were on the brief for
amicus curiae Public Citizen, Inc. in support of appellant.
Tenny, Attorney, U.S. Department of Justice, argued the cause
for appellees. With him on the brief were Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, and Michael S.
Before: Tatel and Wilkins, Circuit Judges, and Sentelle,
Senior Circuit Judge.
704 of the Administrative Procedure Act limits judicial
review under that statute to agency actions "for which
there is no other adequate remedy in a court." 5 U.S.C.
§ 704. Appellant filed suit under the APA to compel the
Department of Justice's Office of Legal Counsel to meet
its disclosure obligations under the "reading-room"
provision of the Freedom of Information Act. 5 U.S.C. §
552(a)(2). The district court dismissed the case, concluding
that appellant has an adequate remedy under FOIA. For the
reasons set forth below, we agree and affirm.
decades, [the Office of Legal Counsel (OLC)] has been the
most significant centralized source of legal advice within
the Executive Branch." Trevor W. Morrison, Stare
Decisis in the Office of Legal Counsel, 110 Colum. L.
Rev. 1448, 1451 (2010). Indeed, executive-branch officials
seek OLC's opinion on some of the weightiest matters in
our public life: from the president's authority to direct
the use of military force without congressional approval, to
the standards governing military interrogation of "alien
unlawful combatants, " to the president's power to
institute a blockade of Cuba. Office of Legal Counsel,
Authority to Use Military Force in Libya (Apr. 1,
2011); Office of Legal Counsel, Military Interrogation of
Alien Unlawful Combatants Held Outside the United States
(Mar. 14, 2003); Office of Legal Counsel, Authority of
the President to Blockade Cuba (Jan. 25, 1961).
authority to render advice is, in some sense, nearly as old
as the Republic itself. In the Judiciary Act of 1789,
Congress authorized the Attorney General "to give his
advice and opinion upon questions of law when required by the
President of the United States, or when requested by the
heads of any of the departments, touching any matters that
may concern their departments." Act of Sept. 24, 1789,
ch. 20, § 35, 1 Stat. 73, 93; see 28 U.S.C.
§§ 511-513 (codified as amended). The Attorney
General has, in turn, delegated to OLC authority to
"[p]repar[e] the formal opinions of the Attorney
General; render informal opinions and legal advice to the
various agencies of the Government; and assist the Attorney
General in the performance of his functions as legal adviser
to the President." 28 C.F.R. § 0.25; see
Luther A. Huston, The Department of Justice 61
(1967) (recounting the formation of OLC).
a "longstanding internal process in place for regular
consideration" of whether to share "significant
opinions" with the public. Memorandum from David J.
Barron, Acting Assistant Attorney General, to Attorneys of
the Office, Best Practices for OLC Legal Advice and Written
Opinions 5 (July 16, 2010). Attorneys who have worked on or
reviewed an opinion give initial recommendations about
whether publication is appropriate that are "forwarded
to an internal publication review committee."
Id. "If the committee makes a preliminary
judgment that the opinion should be published, the opinion is
circulated to the requesting Executive Branch official or
agency and any other agencies that have interests that might
be affected by publication, to solicit their views"
before the committee renders a "final judgment."
Id. In making this determination, OLC "operates
from the presumption that it should make its significant
opinions fully and promptly available." Id. An
opinion is deemed significant if, for example, it possesses
"potential importance . . . to other agencies or
officials in the Executive Branch"; there is a
"likelihood that similar questions may arise in the
future"; it is of "historical importance"; or
it has potential significance to OLC's "overall
jurisprudence." Id. Other factors militate
against disclosure, such as when publication would
"reveal classified or other sensitive information
relating to national security"; "interfere with
federal law enforcement efforts"; undermine
"internal Executive Branch deliberative processes"
or "the confidentiality of information covered by the
attorney-client relationship between OLC and other executive
offices"; or result in the disclosure of documents
"that are of little interest to the public."
Id. at 5-6.
that these procedures provide the public with the access the
Freedom of Information Act demands, appellant Citizens for
Responsibility and Ethics in Washington (CREW) initiated this
litigation. CREW is a nonprofit corporation whose
organizational mission is "to protect the rights of
citizens to be informed about the activities of government
officials." By its own account, CREW is no stranger to
using FOIA to obtain and disseminate information "about
government officials and their actions, " including OLC.
For instance, before commencing this action it filed a
separate FOIA request-not at issue here-"for all [OLC]
opinions discussing the authority of the president as well as
any executive branch agency or agency component to conduct
domestic and foreign surveillance."
filing suit, CREW sent a letter to OLC requesting that it
comply with its obligations under FOIA section 552(a)(2)-the
so-called "reading-room" provision-which requires
agencies to "make available for public inspection in an
electronic format" certain records, including
"final opinions . . . 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." Letter to
Assistant Attorney General Virginia A. Seitz from Anne L.
Weismann (July 3, 2013); 5 U.S.C. § 552(a)(2). CREW
argued that OLC opinions are subject to disclosure under the
reading-room provision because they "function as binding
law on the executive branch." Letter to Assistant
Attorney General Seitz.
response, OLC explained 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 confidential and
pre-decisional legal advice, . . . constitute neither
'final opinions . . . made in the adjudication of
cases' nor 'statements of policy and interpretations
which have been adopted by the agency.'" Letter to
Anne L. Weismann from Deputy Assistant Attorney General John
E. Bies (Aug. 20, 2013). "Nevertheless, " OLC
stated, it "make[s] an individualized, case-by-case
determination with respect to whether each opinion . . . is
appropriate for publication" and, in response to FOIA