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Citizens for Responsibility and Ethics in Washington v. United States Department of Justice

United States Court of Appeals, District of Columbia Circuit

January 31, 2017

Citizens for Responsibility and Ethics in Washington, Appellant
United States Department of Justice, et al., Appellees

          Argued: December 5, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-01291)

          Alan B. Morrison argued the cause for appellant. With him on the briefs was Adam J. Rappaport.

          Scott L. Nelson and Rachel M. Clattenburg were on the brief for amicus curiae Public Citizen, Inc. in support of appellant.

          Daniel 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. Raab, Attorney.

          Before: Tatel and Wilkins, Circuit Judges, and Sentelle, Senior Circuit Judge.


          Tatel, Circuit Judge

         Section 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.


         "For 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).

         OLC's 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).

         OLC has 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.

         Unsatisfied 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."

         Before 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.

         In 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 ...

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