Ctzn Respsble WA v. DHS ( 2008 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 21, 2008 Decided July 11, 2008
No. 07-5406
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
APPELLEE
v.
U.S. DEPARTMENT OF HOMELAND SECURITY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cv01912)
Jonathan F. Cohn, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellant.
With him on the briefs were Jeffrey S. Bucholtz, Acting
Assistant Attorney General, and Mark B. Stern, Michael S.
Raab, Mark R. Freeman, and Christopher J. Walker,
Attorneys. Jeffrey A. Taylor, U.S. Attorney, entered an
appearance.
Anne L. Weismann argued the cause for appellee. With
her on the brief was Melanie Sloan.
2
David L. Sobel and Eric N. Lieberman were on the brief
for amici curiae The Washington Post, et al. in support of
appellee and urging affirmance.
Before: SENTELLE, Chief Judge, and TATEL and
GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In this Freedom of Information
Act case, Citizens for Responsibility and Ethics in
Washington (CREW), a nonprofit organization and
government watchdog, seeks disclosure of Secret Service
visitor logs revealing whether nine specified individuals
entered the White House Complex or the Vice President’s
Residence at any time “from January 1, 2001, to the present.”
Instead of invoking any FOIA exemption, the government
moved for summary judgment, arguing that even though the
Secret Service is an “agency” for FOIA purposes, the
requested visitor logs do not qualify as “agency records”
subject to disclosure. See 5 U.S.C. § 552(a)(4)(B) (granting
federal courts jurisdiction to enjoin agencies from improperly
withholding “agency records”). Disagreeing, the district
court denied the government’s motion and ordered the Secret
Service to “process [CREW]’s Freedom of Information Act
request and produce all responsive records that are not
exempt from disclosure within 20 days.” Order, CREW v.
Dep’t of Homeland Sec., No. 06-1912 (D.D.C. Dec. 17,
2007). On the parties’ joint motion, however, the court
stayed its order pending the government’s appeal. Although
neither party has raised the issue, we now dismiss the appeal
for lack of appellate jurisdiction. See Nat’l Mining Ass’n v.
Kempthorne, 512 F.3d 702, 706 (D.C. Cir. 2008) (“We have
an ‘independent obligation to determine whether subject-
matter jurisdiction exists,’ which we must discharge before
3
ruling on the merits.” (quoting Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006) (citation omitted))).
The government claims two bases for appellate
jurisdiction. First, it invokes 28 U.S.C. § 1291, which
provides “jurisdiction of appeals from all final decisions of
the district courts of the United States.” Here, however, the
district court’s order is not final; it merely denied the
government’s motion for summary judgment, and “as a
general rule, we lack jurisdiction to hear an appeal of a
district court’s denial of summary judgment, partial or
otherwise.” Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290, 296 (D.C. Cir. 2006). “This rule prevents
piecemeal litigation and eliminates delays occasioned by
interlocutory appeals,” McSurely v. McClellan, 697 F.2d 309,
315 (D.C. Cir. 1982), and we see no reason to depart from it
here. The government has yet to claim the right to withhold
the requested records under any of FOIA’s nine exemptions.
See 5 U.S.C. § 552(b) (listing exemptions). Indeed, in its
motion for summary judgment, the government explained,
“[e]ven if these types of records were agency records under
the FOIA, most or all of them would be protected by one or
more FOIA exemptions, most notably Exemption 5, which
encompasses the common law discovery privileges,” Mem. of
P. & A. in Supp. of Def.’s Mot. for Summ. J. 17 n.18 (“Mot.
for Summ. J.”), including the presidential communications
privilege, see Judicial Watch, Inc. v. Dep’t of Justice, 365
F.3d 1108, 1113 (D.C. Cir. 2004) (“Exemption 5 . . . has been
construed to incorporate the presidential communications
privilege.”). “Therefore,” the government continued, “should
the courts somehow conclude that the materials in question
are ‘agency’ records subject to FOIA, defendants respectfully
reserve the right to assert any applicable exemption claim(s)
prior to disclosure, and to litigate further any such exemption
claims.” Mot. for Summ. J. 17 n.18. That is precisely the
4
situation in which the government now finds itself. Only
after the district court rules on any claimed exemptions—
either for or against the government—will there be a final
decision for the government or CREW to appeal. The district
court’s decision is thus hardly one that “ends the litigation on
the merits and leaves nothing more for the court to do but
execute the judgment.” Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 867 (1994) (quoting Catlin v.
United States, 324 U.S. 229, 233 (1945)).
Second, the government points to 28 U.S.C. § 1292(a)(1),
which allows appeals from “[i]nterlocutory orders of the
district courts of the United States . . . granting . . .
injunctions.” But our precedent makes clear that orders like
the one before us fail to qualify as appealable injunctions
under section 1292(a)(1). Indeed, Green v. Department of
Commerce, 618 F.2d 836 (D.C. Cir. 1980), is directly on
point. There a FOIA requestor sought disclosure of “boycott
reports”—documents revealing “requests by foreign nations
for cooperation with boycotts against countries friendly to the
United States”—that exporting companies had submitted to
the Department of Commerce. Id. at 837. The district court
ordered the government to produce the reports to the plaintiff,
but only after notifying the exporters who had submitted
them, “so that they could object to specific disclosures that
might cause them competitive injury.” Id. at 838. Rejecting
the government’s contention that this order amounted to an
appealable injunction, we explained that the argument
“seem[ed] to be based on the erroneous belief that the District
Court order impliedly require[d] disclosure of documents
under the FOIA.” Id. at 841. “On the contrary,” we said, “the
District Court has not yet determined whether to order release
of any documents sought by appellees. The court has merely
heard and rejected two of the [agency]’s legal defenses.” Id.
at 839.
5
So too here. As in Green, “there has not yet been any
requirement—implied or otherwise—of disclosure of
documents,” id. at 841; the district court has simply heard and
rejected the Secret Service’s legal defense that its visitor logs
fail to qualify as “agency records.” Here, as in Green, it is
entirely possible that the government will never have to turn
over a single document given that the Secret Service may yet
be entitled to withhold some or all of the documents under
one or more of FOIA’s nine exemptions. Indeed, the district
court made clear that the government “has a ready recourse in
Exemption 5” should it believe that the visitor records would
reveal privileged presidential communications. CREW v.
Dep’t of Homeland Sec., 527 F. Supp. 2d 76, 99 (D.D.C.
2007). Both Green and this case thus stand in contrast to
FOIA cases in which we found section 1292(a)(1) jurisdiction
after a district court had considered and rejected the
government’s claimed exemptions. See, e.g., Judicial Watch,
Inc. v. Dep’t of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005)
(“The trial court unequivocally rejected the Government’s
legal position regarding the substantive protection afforded by
the attorney work-product doctrine under Exemption 5 of
FOIA, and ordered the Government to disclose materials for
which it claimed exemption.”); Judicial Watch, Inc. v. Dep’t
of Energy, 412 F.3d 125, 128 (D.C. Cir. 2005) (finding the
district court’s order appealable under section 1292(a)(1)
because “it require[d] the disclosure of documents for which
the agencies claim[ed] no basis for non-disclosure beyond the
argument already rejected by the district court”); see also
Ferguson v. FBI, 957 F.2d 1059, 1064 (2d Cir. 1992)
(distinguishing appealable FOIA disclosure orders from those
in which “the district court ha[d] yet to determine whether the
[agency] must disclose the relevant information”).
In Green, we also rejected the government’s argument
that because the district court’s order directed the agency to
6
contact exporters whose trade secrets could be affected by
disclosure, the order was “injunctive in nature.” 618 F.3d at
841. We explained that the order was “not . . . an ‘injunction’
for purposes of Section 1292(a)(1)” because “it d[id] not
affect the rights or behavior of parties outside of the litigation,
and d[id] not differ from any other time-consuming
requirement imposed on litigants by courts in the interest of
obtaining full information.” Id. For similar reasons, the
district court’s order requiring the Secret Service to process
CREW’s request within twenty days does not qualify as an
injunction under section 1292(a)(1). Under the court’s order,
the Secret Service will have to search for and locate any
responsive documents and claim any exemptions it believes
applicable. At that point, the court may agree with the
agency, allowing it to withhold the requested records, in
which case the government would have no cause to appeal.
Or alternatively, “the issues might be sufficiently narrowed to
permit the parties to reach a settlement.” Id. at 839. In either
case, appellate review at this stage is premature.
The collateral order doctrine, of course, provides another
possible basis for appellate jurisdiction. See Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). That
doctrine allows interlocutory review of a “small class” of
decisions that “conclusively determine the disputed question,
resolve an important issue completely separate from the
merits of the action, and [are] effectively unreviewable on
appeal from a final judgment.” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468 (1978). The Supreme Court has
repeatedly emphasized the doctrine’s deliberately “modest
scope,” rejecting efforts “to expand the ‘small class’ of
collaterally appealable orders” beyond its “narrow and
selective . . . membership.” Will v. Hallock, 546 U.S. 345,
350 (2006); see also Digital Equip. Corp., 511 U.S. at 868(“[T]he ‘narrow’ exception should stay that way and never be
7
allowed to swallow the general rule that a party is entitled to a
single appeal, to be deferred until final judgment has been
entered.” (citation omitted)).
Although the government never asserted jurisdiction
under the collateral order doctrine, it has raised an argument
on the merits that could bear on the doctrine’s applicability to
this case. Specifically, the government contends that forcing
the Secret Service to invoke Exemption 5 is unacceptable
because “requiring the President or Vice President to consider
the assertion of privileges over requested documents is an
injury separate from the disclosure of the documents
themselves.” Appellants’ Opening Br. 41. After all, as the
government points out, “[t]he burden of processing the
records and asserting exemptions would fall squarely on the
President, the Vice President, and their senior advisors—the
only people with the information necessary to make the
requisite privilege determinations.” Id. at 40. Even though
the government neglected to make this argument in
jurisdictional terms, we address it here because it speaks both
to the “important[ce]” of the district court’s decision and to its
reviewability “on appeal from a final judgment.” Coopers &
Lybrand, 437 U.S. at 468.
The government places great weight on Cheney v. United
States District Court, 542 U.S. 367 (2004), arguing that
requiring invocation of FOIA Exemption 5 would run counter
to the Supreme Court’s warning that courts should hesitate
before requiring the President or Vice President to “bear the
burden” of “asserting specific claims of privilege and making
. . . particular objections.” Id. at 388-89. In the context of
this case, we disagree.
First of all, the government has yet to claim that any
FOIA exemption applies, and Exemption 5’s presidential
8
communications privilege is but one of several exemptions on
which the government might rely. By requesting review now,
the government asks us to assume both that Exemption 5
provides the only way for the Secret Service to withhold the
contested visitor records and that the district court will reject
its application. We see no reason to make either assumption.
In any event, we find unpersuasive the government’s
argument that this case implicates the same separation-of-
powers concerns present in Cheney. There, two nonprofit
organizations, Judicial Watch and the Sierra Club, filed civil
suits, not FOIA requests, directly against various government
officials—including Vice President Cheney himself—alleging
that the National Energy Policy Development Group
(NEPDG) was subject to the Federal Advisory Committee
Act’s disclosure requirements. Id. at 373-74. The district
court had allowed discovery to proceed against the Vice
President in order to establish exactly who attended NEPDG
meetings, and the Vice President sought a writ of mandamus
from this court to vacate the discovery orders. See In re
Cheney, 334 F.3d 1096, 1100-01 (D.C. Cir. 2003). After
emphasizing the need for the district court to “narrow
discovery to ensure that plaintiffs obtain no more than they
need to prove their case,” id. at 1106, we rejected the Vice
President’s request for mandamus, explaining that he could
object to individual discovery requests on executive privilege
grounds if need be, id. at 1107. The Supreme Court reversed,
explaining that “separation-of-powers considerations should
inform a court of appeals’ evaluation of a mandamus petition
involving the President or the Vice President.” Cheney, 542
U.S. at 382. Seizing on the Court’s statement that “special
considerations control when the Executive Branch’s interests
in maintaining the autonomy of its office and safeguarding
the confidentiality of its communications are implicated,” id.
at 385, the government argues that requiring the Secret
9
Service to review FOIA requests for its visitor logs is
tantamount to the discovery request at issue in Cheney.
Cheney is distinguishable from this case on several
grounds. To begin with, the discovery request in Cheney was
directed at the Vice President himself. Indeed, the Court
explained that “[w]ere the Vice President not a party in the
case, the argument that the Court of Appeals should have
entertained an action in mandamus . . . might present different
considerations.” Id. at 381. The Court also observed, “[t]his
is not a routine discovery dispute. The discovery requests are
directed to the Vice President and other senior Government
officials who served on the NEPDG to give advice and make
recommendations to the President.” Id. at 385. Here, CREW
seeks documents not from the President or Vice President, but
rather from the Secret Service, a FOIA agency well
accustomed to dealing with such requests. Indeed, the agency
processed this FOIA request in accordance with its routine
procedures. See Lyerly Decl. ¶¶ 2-9, 11-28 (May 24, 2007)
(explaining how the Secret Service initially processed
CREW’s request and asserting several FOIA exemptions over
certain responsive documents); see also 6 C.F.R. § 5.4(establishing procedures by which components within the
Department of Homeland Security process FOIA requests).
According to the Secret Service’s FOIA officer, “the
individuals who performed the searches
. . . conduct FOIA searches as part of their regular
responsibilities.” Lyerly Decl. ¶ 8. True, the agency would
need to consult with the White House before claiming
Exemption 5 on executive privilege grounds, but, as The
Washington Post et al. point out in their amicus brief, “[t]here
is, in fact, nothing extraordinary about such a procedure.”
Amicus Br. 12. The Justice Department issued a
memorandum in 1993 explaining that “[i]n processing FOIA
requests, agencies searching for responsive records
10
occasionally find White House-originated records (or records
containing White House-originated information) that are
located in their files.” U.S. Dep’t of Justice, FOIA Update:
FOIA Memo on White House Records, Vol. XIV, No. 3
(1993), available at http://www.usdoj.gov/oip/foia_
updates/Vol_XIV_3/page4.htm. When that happens, agencies
are instructed to forward the records “to the Office of the
Counsel to the President for any recommendation or comment
it may wish to make, including any assertion of privilege,
prior to [the agency’s] response to the FOIA requester.” Id.Indeed, the government concedes that the Secret Service
followed a similar practice with regard to previous visitor log
requests, explaining that in “two cases . . . [visitor] records
were released only after obtaining approval from the White
House.” Appellants’ Reply Br. 12 n.3; see also 3d Morrissey
Decl. ¶ 23 (explaining that in three previous cases the Secret
Service released visitor records “after the Office of the
President and the Office of the Vice President, in the exercise
of discretion, expressly authorized the[] releases”).
Moreover, a profound difference exists between
subpoenas and discovery requests in civil or criminal cases
against the President or Vice President and routine FOIA
cases involving records that may or may not touch on
presidential or vice presidential activities. Driving the
Cheney Court was a concern that forcing the Vice President to
assert executive privilege in the context of broad discovery
requests submitted during civil litigation would set “coequal
branches of the Government . . . on a collision course.”
Cheney, 542 U.S. at 389. In the civil discovery context, if the
President or Vice President refuses to submit to a court’s
discovery order, the court’s ultimate sanction is a contempt
finding against the President or Vice President. In the FOIA
context, however, no such danger exists. If the Secret Service
claims authority to withhold the requested records under
11
Exemption 5, and if a court ultimately finds that exemption
inapplicable, the agency would simply have to disclose the
documents. If the agency refused to do so, it—not the
President or Vice President—would “face[] the sanction of
contempt.” Edmonds v. FBI, 417 F.3d 1319, 1323 (D.C. Cir.
2005) (explaining that if an agency refuses to disclose
documents as required by a court order, the agency can be
held in contempt). Furthermore, unlike civil discovery, which
the Court noted lacks “checks” sufficient “to discourage the
filing of meritless claims against the Executive Branch,”
Cheney, 542 U.S. at 386, FOIA provides a carefully
structured process for dealing with requests for agency
documents that might reveal too much about presidential
communications. The government has offered no convincing
reason to depart from Congress’s statutory design here.
Cheney is also distinguishable because CREW’s FOIA
request has little in common with the broad discovery order at
issue there. In Cheney, the Court contrasted the disputed
discovery requests before it with the acceptable subpoena
orders at issue in United States v. Nixon, 418 U.S. 683 (1974),
which had “‘precisely identified’ and ‘specific[ally] . . .
enumerated’ the relevant materials.” Cheney, 542 U.S. at 387(quoting Nixon, 418 U.S. at 688 & n.5) (alteration in
original). The Cheney discovery request, by contrast,
“ask[ed] for everything under the sky.” Id. Given the broad
scope of those discovery requests, the Court concluded that
the Executive Branch should not have to “bear the burden of
invoking executive privilege with sufficient specificity and of
making particularized objections.” Id. at 388 (internal
quotation marks omitted).
CREW has not made a massive, wide-ranging, “overly
broad discovery request[],” id. at 386, that would require the
President, Vice President, or their staff to sort through
12
mountains of files for responsive documents while “critiquing
the unacceptable discovery requests line by line,” id. at 388.
Rather, CREW’s request “‘precisely identified’ and
‘specific[ally] . . . enumerated’ the relevant materials,”
Cheney, 542 U.S. at 387 (quoting Nixon, 418 U.S. at 688 &
n.5) (alteration in original), focusing on very specific records
all containing the same basic information: names, dates, and
other visitor data. Critically for our purposes, moreover, this
particular FOIA request is narrowly drawn, targeting nine
specific individuals. Accordingly, the burden on the White
House or Office of the Vice President to decide whether to
claim Exemption 5 over any responsive records should prove
minimal, especially if, as appears likely from the
government’s current litigation posture, the White House
issues a blanket claim of privilege over all responsive Secret
Service visitor records.
Finally, although Cheney makes clear that courts should
“explore other avenues, short of forcing the Executive to
invoke privilege, when they are asked to enforce against the
Executive Branch unnecessarily broad subpoenas,” id. at 390,
nothing in the opinion suggests that routine FOIA requests to
executive agencies ought to ring the same alarm bells.
Taking the government’s argument to its logical conclusion
would mean that the President should never have to assert
executive privilege in the Exemption 5 context because doing
so is simply too burdensome. But that can’t be right—indeed,
the President has routinely invoked Exemption 5 in other
FOIA cases. For example, when the Democratic National
Committee recently filed a FOIA request with the Justice
Department seeking White House emails regarding the firings
of several United States Attorneys, the government
successfully argued to the district court that Exemption 5’s
presidential communications privilege protected the emails
from disclosure. See Democratic Nat’l Comm. v. Dep’t of
13
Justice, 539 F. Supp. 2d 363, 365-68 (D.D.C. 2008).
Similarly, when a FOIA plaintiff sought documents from the
Defense Department “regarding procedures for the
forwarding of military death penalty cases to the President,”
the government successfully withheld those records based on
Exemption 5. Loving v. Dep’t of Defense, 496 F. Supp. 2d
101, 104, 106-09 (D.D.C. 2007); see also, e.g., N.Y. Times
Co. v. Dep’t of Defense, 499 F. Supp. 2d 501, 516 (S.D.N.Y.
2007) (finding comments sent from a White House Counsel’s
Office attorney regarding the President’s radio address
protected from disclosure by Exemption 5); Berman v. CIA,
378 F. Supp. 2d 1209, 1218-22 (E.D. Cal. 2005) (finding
daily briefings from President Lyndon Johnson’s term of
office protected by Exemption 5). As these examples well
demonstrate, invocation of the presidential communications
privilege in FOIA cases is a routine occurrence, not a
uniquely intrusive burden.
Having found no jurisdictional basis under which we can
proceed, we conclude with the language with which we
closed in Green:
In a[] FOIA case a “final decision” is an order
by the District Court requiring release of
documents by the Government to the plaintiff,
or an order denying the plaintiff’s right to such
release. The case at bar does not present an
appealable “final order,” but rather an
interlocutory order issued in the course of a
continuing proceeding. By dismissing this
appeal we will enable the District Court to
complete its work without further interruption.
Perhaps the result of the District Court
proceeding will make an appeal from final
judgment unnecessary; perhaps it will sharpen
14
and narrow the legal issues that must
eventually be decided by an appellate court.
The parties may regret that they cannot now
obtain a ruling on the merits after they have
prepared for this appeal, but we believe that in
the long run close adherence to the final
judgment rule is better calculated to produce
considered and expeditious justice.
Green, 618 F.2d at 841-42. Because we find this reasoning
directly applicable here, we dismiss the government’s appeal
for lack of jurisdiction.
So ordered.