Citizens for Responsibility and Ethics in Washington v. DOJ

922 F.3d 480

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 30, 2019
• Docket: 18-5116
• Status: Published

Opinion

Pillard, Circuit Judge, dissenting:

It is not certain at this stage how much-if any-of OLC's output might ultimately be subject to disclosure under FOIA's reading-room provision. But "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of ... facts [supporting relief] is improbable, and 'that a recovery is very remote and unlikely.' " Bell Atl. Corp. v. Twombly , 550 U.S. 544 , 556, 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007) (quoting Scheuer v. Rhodes , 416 U.S. 232 , 236, 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974) ). The sole issue before us is the threshold question whether CREW has alleged enough to survive a motion to dismiss. Because I believe that it has, I would reverse the contrary judgment of the district court.

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Under Federal Rule of Civil Procedure 8, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleadings must 'give the defendants fair notice of what the claim is and the grounds upon which it rests,' but the Rule 'does not require detailed factual allegations.' " Jones v. Kirchner , 835 F.3d 74 , 79 (D.C. Cir. 2016) (quoting Twombly , 550 U.S. at 555 , 127 S.Ct. 1955 , and Ashcroft v. Iqbal , 556 U.S. 662 , 678, 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009) ). CREW plausibly alleges that at least some OLC opinions fall within FOIA's reading-room provision, because they are either "final opinions ... made in the adjudication of cases" or "interpretations which have been adopted by the agency and are not published in the Federal Register," 5 U.S.C. § 552 (a)(2)(A)-(B). Documents meeting either description are "working law" within the meaning of Tax Analysts v. IRS , 294 F.3d 71 , 81-82 (D.C. Cir. 2002), which OLC must routinely make electronically available to the public without a FOIA request. The question whether any of OLC's work product is covered by the reading-room disclosure requirement of Section 552(a)(2) is one of first impression, and the answer is not obvious. But the complaint as pleaded certainly alleges the relevant facts sufficiently to have posed the legal question to the district court.

CREW has described-often in OLC's own words-that Office's adjudicative process and the authoritative nature of its opinions. The facts that CREW alleges to support its claim that OLC issues "final opinions" in the "adjudication of cases" describe OLC's role as an authoritative decider of disputes between and among entities within the executive branch. According to OLC's own website and Best Practices Memo, both of which are publicly accessible and are referenced and quoted in CREW's complaint, OLC provides controlling advice in interagency disputes when asked. J.A. 9, 11 (Compl. ¶¶ 18-19, 27, Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice , Case No. 1:17-cv-00432, ECF No. 1 ("Compl.")). To inform OLC's decisions in such cases, the Office uses an adversary process: Contending agencies weigh in with memoranda or other communications reflecting their legal positions. Based on such "briefing," OLC renders its decisions. Those decisions may or may not as a legal matter amount to "final opinions ... made in the adjudication of cases" within the meaning of Section 552(a)(2) ; perhaps "adjudications" between two parts of the executive branch are not the kind of "adjudication of cases" to which that section refers. But CREW's allegations suffice to fairly present its claim that they are.

CREW also alleges facts sufficient to raise its parallel claim that OLC renders "interpretations which have been adopted by the agency" within the meaning of Section 552(a)(2). The complaint plausibly alleges that another role of OLC is to provide legal advice that is "authoritative" and "binding by custom and practice in the executive branch"-statements of what the law permits or requires that "[p]eople are supposed to and do follow." J.A. 9 (Compl. ¶¶ 18-19) (internal quotation marks omitted). The complaint alleges that certain of OLC's opinions are "controlling" interpretations, and even "may effectively be the final word on controlling law" in some situations. Id.

The Best Practices Memo bolsters those allegations by explaining that OLC provides opinions to independent agencies only if they have agreed to be bound by- i.e. , will adopt-OLC's advice. For purposes of a motion to dismiss for failure to state a claim, we treat as true CREW's factual allegations that client agencies accept OLC opinions as "controlling," "authoritative," and "binding." There is extra reason to do so here insofar as the allegations quote and track published descriptions by OLC veterans of the Office's work as including a category of legal interpretations that agencies believe they must, and do, adopt. Again, CREW's legal theory may ultimately fail. It may be that the agreement of one part of the executive branch (the agency "client") to follow a legal interpretation offered by another part of the branch (OLC) is not what Section 552(a)(2) means by "interpretations which have been adopted by the agency." But CREW plausibly alleges a regular category of OLC's work product that, it contends, matches the statutory description-sufficiently teeing up its claim for the district court.

By way of illustration, CREW has pointed to publicly available opinions that-although not disclosed under the reading-room provision-plausibly are subject to its requirements. One of the opinions it identified, for example, addressed whether the Defense of Marriage Act (DOMA) prevented the nonbiological child of a civil union from qualifying for insurance benefits under the Social Security Act. The government published that opinion and has made it electronically available to the public on its website, but the government's litigation position is that it was not required to do so-whether pursuant to the reading-room provision or otherwise. CREW disagrees, because in seeking OLC's advice on the DOMA question, the Social Security Administration had agreed to be bound by whatever interpretation the Office made. See OLC, Whether the Defense of Marriage Act Precludes the Nonbiological Child of a Member of a Vermont Civil Union from Qualifying for Child's Insurance Benefits Under the Social Security Act 243 n.1 (Oct. 16, 2007), https://www.justice.gov/file/451616/download. CREW accordingly argues that OLC's opinion was an "interpretation[ ] which ha[d] been adopted by the agency," and so was subject to Section 552(a)(2). Contrary to the court's assertion, however, it was not necessary for CREW to cite that opinion in its complaint for it to exemplify a category of OLC opinions that the complaint plausibly pleads must be published electronically under FOIA's reading-room provision.

The court rejects CREW's claim by reasoning, in effect, that CREW has asked for more relief than it can get. It points to an OLC opinion that arguably provided a "controlling legal interpretation[ ]," J.A. 5, but that this court held in Electronic Frontier Foundation v. U.S. Department of Justice , 739 F.3d 1 (D.C. Cir. 2014) ( EFF ), was protected from disclosure by the deliberative process privilege, id. at 4 . I agree that EFF shows that there is a subcategory of opinions (encompassing at least one, and likely many more) that need not be disclosed under the reading-room provision, whether because they have not been adopted by the receiving agency, or are subject to a FOIA exemption, or both. But the majority makes too much soup from one oyster. EFF could only defeat CREW's merits claim if we were certain that every one of the Office's opinions would be shielded from disclosure for the reasons that were dispositive in EFF . The government does not so claim, however, and my colleagues do not so hold. The identification of a single opinion that could be withheld even were plaintiff's legal theory correct is no basis upon which to dismiss the complaint for failure to state a claim. Indeed, the majority itself is "skeptical of the Department of Justice's position that none of the OLC's formal written opinions constitutes the 'working law' of an agency subject to disclosure under FOIA's reading-room provision." Op. 487 n.2. That alone should be enough, in light of the government's affirmative legal obligation under the reading-room provision, to entitle the claim to proceed.

The majority faults CREW for asking for "all" formal written OLC opinions, rather than making a more tailored request. See, e.g. , Op. 486-87. But just because we might conceive of more exact ways to ask for the documents does not mean that CREW's pleading falls short. The complaint makes clear that CREW is seeking those documents that fall within the definition of what the government is required to publish under the reading-room provision. In its complaint, CREW alleges that "OLC has refused to produce ... its formal written opinions setting forth controlling legal interpretations," J.A. 5 (Compl. ¶ 2), as well as its "final opinions made in the adjudication of cases," J.A. 10-11 (Compl. ¶ 26). Taking the complaint in the light most favorable to CREW, it is not requesting anything that FOIA exempts. And, even if the terms of the complaint could be read to sweep in the OLC opinion from EFF , an overambitious remedial request does not defeat a plausibly alleged legal claim.

By requiring more detail from CREW at this stage, the court effectively forces CREW to anticipate and plead around any FOIA-exemption defense the government might raise. But a potential defense not yet asserted is no ground upon which to dismiss a complaint. It is firmly established that "a plaintiff is not required to negate an affirmative defense in his complaint." Flying Food Grp., Inc. v. NLRB , 471 F.3d 178 , 183 (D.C. Cir. 2006) (internal quotation marks omitted); accord Gomez v.Toledo , 446 U.S. 635 , 640, 100 S.Ct. 1920 , 64 L.Ed.2d 572 (1980). At the Rule 12(b)(6) stage, CREW's burden is limited to plausibly pleading that at least some OLC opinions are "working law" and are therefore covered by the reading-room provision-a burden it has neatly carried. It is the government's burden, in its turn, to allege and show that some or all of the documents sought are subject to a FOIA exemption.

Requiring CREW, on pain of dismissal, to request only documents that are not exempt erroneously places the government's burden on CREW's shoulders.

The majority's position is puzzling from a practical standpoint as well. It is hard to see what more might be required to state CREW's claim. The parallel litigation in Campaign for Accountability v. U.S. Department of Justice underscores the point. As the majority notes, unlike CREW, plaintiff Campaign for Accountability did amend its complaint to describe subcategories of OLC opinions that it believes are not exempt from FOIA and so must be disclosed. See Am. Compl. 12-19, Campaign for Accountability v. U.S. Dep't of Justice , Case No. 1:16-cv-01068, ECF No. 22. Those subcategories are "[o]pinions resolving interagency disputes," "[o]pinions issued to independent agencies," "[o]pinions interpreting non-discretionary legal obligations," "[o]pinions finding that particular statutes are unconstitutional and that therefore agencies need not comply with them," and "[o]pinions adjudicating or determining private rights." Id. at 13, 15-16, 18-19. The government there again moved to dismiss the amended complaint, arguing that neither OLC's binding opinions generally nor the subcategories the plaintiff identified in its amended complaint are subject to publication under the reading-room provision. See Mem. Supp. Def.'s Renewed Mot. Dismiss Am. Compl. i-ii, Campaign for Accountability , Case No. 1:16-cv-01068, ECF No. 29-1. The claim posed by the amended complaint in Campaign for Accountability is not materially different from the claim CREW's complaint advances.

Contrary to the majority's view, the obstacle CREW challenges is not "self-inflicted," Op. 489. The alternatives the majority proposes-amending the complaint, or seeking documents under FOIA's reactive provision, Section 552(a)(3) -are unresponsive to CREW's claim that OLC is not complying with its affirmative legal duties under the reading-room provision, Section 552(a)(2). As just noted, Campaign for Accountability effectively reiterates the same claim that CREW already adequately pleads. And the suggestion that plaintiff should proceed via FOIA's reactive provision is also off the mark: Shunting plaintiff down a different statutory path that requires it to request particular documents is no answer to its claim for reading-room access to electronic versions of Section 552(a)(2) documents without any FOIA request. The point of the reading-room provision, after all, is to put the burden on agencies to make their "working law" readily available, without request, to anyone who might want to read it.

In sum, the government's position is that the body of OLC documents that are subject to the reading-room provision is a null set; CREW's position is that it is not. The grounds of CREW's claim are clear enough from the face of its complaint. It may or may not be overly ambitious in its request, and the government may or may not be overly protective in its position that no OLC opinions need be published under the reading-room provision. In either event, the claim is adequately pleaded.

"Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679 , 129 S.Ct. 1937 . To survive a motion to dismiss, the complaint need only plausibly allege facts sufficient to ground its challenge to the government's zero-disclosure position. I believe it does so. The Rule 8 pleading standard requires no further allegations. Because I conclude that CREW's allegations plainly suffice to state a claim, entitling it to a remand for further proceedings, I respectfully dissent.