Citizens for Responsibility and Ethics in Washington v. DOJ , 922 F.3d 480 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2018 Decided April 30, 2019
No. 18-5116
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00432)
Anne L. Weismann argued the cause for the appellant.
Alan B. Morrison and Adam J. Rappaport were with her on
brief. Stuart McPhail entered an appearance.
Alex Abdo and Jameel Jaffer were on brief for the amici
curiae The Knight First Amendment Institute at Columbia
University, et al. in support of the appellant.
Brad Hinshelwood, Attorney, United States Department of
Justice, argued the cause for the appellee. Michael S. Raab,
Attorney, was with him on brief.
2
Before: HENDERSON and PILLARD, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge PILLARD.
KAREN LECRAFT HENDERSON, Circuit Judge: Citizens for
Responsibility and Ethics in Washington (CREW), a non-profit
advocacy group, seeks to compel the United States Department
of Justice’s Office of Legal Counsel to make available all of its
formal written opinions, as well as indices of those opinions,
under the so-called “reading-room” provision of the Freedom
of Information Act (FOIA), 5 U.S.C. § 552(a)(2). The district
court dismissed CREW’s complaint for failure to state a claim
upon which relief can be granted, largely based on this Court’s
decision in Electronic Frontier Foundation v. United States
Department of Justice (EFF), 739 F.3d 1 (D.C. Cir. 2014).
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of
Justice, 298 F. Supp. 3d 151, 155–56 (D.D.C. 2018). We
agree and therefore affirm.
I. BACKGROUND
The authority of the Office of Legal Counsel (OLC) is
“nearly as old as the Republic itself.” Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice
(CREW I), 846 F.3d 1235, 1238 (D.C. Cir. 2017). Since the
Judiciary Act of 1789, the United States Attorney General has
had the authority “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.” Judiciary Act of 1789, § 35, 1 Stat. 73, 93
(codified as amended at 28 U.S.C. §§ 511–513). The
Attorney General has since delegated much of his authority to
3
the OLC. See 28 C.F.R. § 0.25. The OLC’s responsibilities
currently include “[p]reparing the formal opinions of the
Attorney General; rendering informal opinions and legal
advice to the various agencies of the Government; and assisting
the Attorney General in the performance of his functions as
legal adviser to the President.” Id. § 0.25(a). Over the years,
the OLC has opined on “some of the weightiest matters in our
public life: from the [P]resident’s authority to direct the use of
military force without congressional approval, to the standards
governing military interrogation of ‘alien unlawful
combatants,’ to the [P]resident’s power to institute a blockade
of Cuba.” CREW I, 846 F.3d at 1238.
Although the OLC frequently conveys its legal advice to
executive agencies through informal means, it sometimes does
so through “formal written opinions.” See Memorandum
from David J. Barron, Acting Assistant Attorney Gen., to
Attorneys of the Office of Legal Counsel, Best Practices for
OLC Legal Advice and Written Opinions 1–2 (July 16, 2010)
(hereinafter Best Practices Memo). Formal written opinions
“take the form of signed memoranda, issued to an Executive
Branch official who has requested the [OLC]’s opinion.” Id.
at 2. The OLC considers its formal written opinions to be “one
particularly important form of controlling legal advice.” Id. at
1. Indeed, a former head of the OLC has described its formal
written opinions and informal advice as “authoritative” and
“binding by custom and practice in the executive branch.”
Josh Gerstein, Official: FOIA Worries Dampen Requests for
Formal Legal Opinions, Politico: Under the Radar (Nov. 5,
2015), https://www.politico.com/blogs/under-the-radar/2015
/11/official-foia-worries-dampen-requests-for-formal-legal
-opinions-215567.
The OLC publishes some, but not all, of its formal written
opinions. See Best Practices Memo 5. In deciding whether
4
to publish a formal written opinion, the OLC considers “the
potential importance of the opinion to other agencies or
officials in the Executive Branch; the likelihood that similar
questions may arise in the future; the historical importance of
the opinion or the context in which it arose; and the potential
significance of the opinion to the [OLC]’s overall
jurisprudence.” Id. “In applying these factors, the [OLC]
operates from the presumption that it should make its
significant opinions fully and promptly available to the public.”
Id. The OLC then weighs those factors against
“countervailing considerations” such as whether publication
“would reveal classified or other sensitive information relating
to national security[,] . . . would interfere with federal law
enforcement efforts or is prohibited by law.” Id.
Additionally, the OLC “decline[s] to publish opinions when
doing so is necessary to preserve internal Executive Branch
deliberative processes or protect the confidentiality of
information covered by the attorney-client relationship
between OLC and other executive offices.” Id. at 5–6.
Invoking FOIA, CREW seeks to compel disclosure of the
OLC’s unpublished formal written opinions. Importantly,
CREW does not rely on FOIA’s “most familiar provision”—
§ 552(a)(3)—by making a specific request for documents.
CREW I, 846 F.3d at 1240. Instead, CREW relies upon
FOIA’s reading-room provision, § 552(a)(2). Unlike its more
commonly invoked neighbor—which imposes a “reactive”
duty on agencies, CREW I, 846 F.3d at 1240—the reading-
room provision affirmatively obligates agencies to “make
available for public inspection” several categories of
documents even absent a specific request. 5 U.S.C.
§ 552(a)(2); see CREW I, 846 F.3d at 1240. As relevant here,
the categories include (1) “final opinions, including concurring
and dissenting opinions, as well as orders, made in the
adjudication of cases,” (2) “those statements of policy and
5
interpretations which have been adopted by the agency and are
not published in the Federal Register” and (3) “current indexes
providing identifying information . . . as to any matter . . .
required by this paragraph to be made available or published.”
Id. § 552(a)(2).
In July 2013, CREW urged the OLC to make available all
of its formal written opinions and indices of those opinions.
After the OLC declined, CREW sued the Department of Justice
to compel disclosure under FOIA’s reading-room provision.
See CREW I, 846 F.3d at 1240. The district court dismissed
the complaint because CREW improperly brought its claim
under the Administrative Procedure Act, 5 U.S.C. § 704,
instead of FOIA’s judicial-review provision, 5 U.S.C.
§ 552(a)(4)(B). Citizens for Responsibility & Ethics in Wash.
v. U.S. Dep’t of Justice, 164 F. Supp. 3d 145, 151–56 (D.D.C.
2016). We affirmed the dismissal. CREW I, 846 F.3d at
1246.
While CREW I was pending, we also decided EFF. 739
F.3d 1. In EFF, we addressed a claim brought under FOIA’s
“reactive” provision seeking disclosure of a formal written
opinion the OLC had sent to the FBI. Id. at 4–6. The court
held that the opinion was exempt from disclosure by the
deliberative process privilege. Id. at 9–10. As relevant here,
it determined that, notwithstanding the opinion at issue bore
some “indicia of a binding legal decision”—namely, that it was
“controlling (insofar as agencies customarily follow OLC
advice that they request), precedential, and can be
withdrawn”—it did not constitute the FBI’s “working law”
because the OLC “does not speak with authority on the FBI’s
policy.” Id. at 9. Instead, the court concluded, the OLC
opinion was “precisely the sort of ‘advisory opinion . . .
comprising part of a process by which governmental decisions
and policies are formulated’ that is covered by the deliberative
6
process privilege.” Id. at 10 (alteration in original) (quoting
Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865,
875 (D.C. Cir. 2010)).
Following our decisions in EFF and CREW I, CREW sent
a letter to the OLC in February 2017 renewing its request that
the OLC disclose all of its formal written opinions and
accompanying indices under FOIA’s reading-room provision.
The OLC did not respond to the renewed request, prompting
CREW to sue again, this time under FOIA’s judicial-review
provision, § 552(a)(4)(B).
The district court dismissed CREW’s new complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted. Citizens for
Responsibility & Ethics in Wash., 298 F. Supp. 3d at 156. It
observed that CREW’s complaint “is premised on a universal
claim” for all of the OLC’s formal written opinions and
corresponding indices. Id. at 154. “Accordingly,” the court
reasoned, “if the [Department of Justice] can identify any
formal written opinions that are not subject to FOIA disclosure,
CREW’s universal claim fails.” Id. It then concluded that
our EFF decision “dooms CREW’s complaint as currently
articulated, because it establishes that at least one of OLC’s
formal written opinions—the opinion in EFF—is exempt from
FOIA disclosure.” Id. at 155. The court, however,
acknowledged that CREW might state a viable claim if it
“amend[ed] its complaint to allege that some specific subset of
OLC’s formal written opinions [is] being unlawfully
withheld.” Id. at 156. The court therefore gave CREW leave
to amend its complaint. Id. CREW declined to amend its
complaint, however, opting instead to appeal.
Notably, CREW is not the only advocacy group seeking to
compel disclosure of the OLC’s formal written opinions in toto.
7
Campaign for Accountability (CfA), amicus in this appeal,
filed a similar suit under FOIA’s reading-room provision. See
Campaign for Accountability v. U.S. Dep’t of Justice, 278 F.
Supp. 3d 303, 305 (D.D.C. 2017). There, as here, the district
court concluded that EFF foreclosed a universal claim and
offered leave to amend the complaint. Id. at 320–23. Unlike
CREW, CfA accepted the invitation and amended its complaint
to allege that several subcategories of the OLC’s formal written
opinions are subject to disclosure under FOIA’s reading-room
provision. See Am. Compl. ¶¶ 33–49, Campaign for
Accountability v. U.S. Dep’t of Justice, No. 1:16-cv-1068
(D.D.C. Oct. 27, 2017). The Department of Justice’s motion
to dismiss CfA’s amended complaint remains pending.
II. ANALYSIS
The Court reviews de novo the dismissal of a complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted. Coburn v.
Evercore Tr. Co., N.A., 844 F.3d 965, 968 (D.C. Cir. 2016).
To state a claim under FOIA, CREW must plausibly allege
“that an agency has (1) ‘improperly’; (2) ‘withheld’; (3)
‘agency records.’” Competitive Enter. Inst. v. Office of Sci. &
Tech. Policy, 827 F.3d 145, 147 (D.C. Cir. 2016) (quoting
Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136, 150 (1980)). In this case, there is no dispute that the
formal written opinions the OLC has declined to publish are
“withheld” “agency records.” The only remaining question is
whether the OLC has withheld those opinions “improperly.”
An agency withholds its records “improperly” if it fails to
comply with one of FOIA’s “mandatory disclosure
requirements.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S.
136, 150 (1989). Relevant here, FOIA’s reading-room
provision mandates that an agency disclose certain enumerated
8
categories of records. See 5 U.S.C. § 552(a)(2). As
previously described, these categories include “final
opinions . . . in the adjudication of cases” and “statements of
policy and interpretations which have been adopted by the
agency.” Id. § 552(a)(2)(A)–(B). The United States
Supreme Court has explained that these categories of records
constitute the “working law” of an agency because they “have
‘the force and effect of law.’” NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 153 (1975) (quoting H.R. Rep. No. 1497, at 7
(1966)). An OLC opinion in the latter category qualifies as
the “working law” of an agency only if the agency has
“adopted” the opinion as its own. EFF, 739 F.3d at 9. Thus,
the dispositive question before us is whether CREW has
plausibly alleged that the OLC’s formal written opinions have
all been adopted by the agencies to which they were addressed,
subjecting the opinions to disclosure under FOIA’s reading-
room provision as the “working law” of those agencies.
CREW’s complaint makes no such allegation. It instead
alleges only that the OLC’s formal written opinions are
“controlling,” “authoritative” and “binding.” As EFF noted,
these descriptors alone are insufficient to render an OLC
opinion the “working law” of an agency; that OLC opinions are
“controlling (insofar as agencies customarily follow OLC
advice that they request), precedential, and can be
withdrawn . . . does not overcome the fact that OLC does not
speak with authority on the [agency’s] policy.” Id. 1
1
CREW urges that the OLC opinion at issue in EFF was not a
formal written opinion because it was not “prospective” and because
it only examined “policy options.” We disagree. EFF described
the OLC opinion as “bear[ing] . . . indicia of a binding legal
decision,” including that the opinion was “controlling” and
“precedential.” Id. at 9. Moreover, the OLC opinion in EFF
examined the FBI’s policy options by “describ[ing] the legal
parameters of what the FBI is permitted to do”—which most
9
Importantly, CREW does not allege that all of the OLC’s
formal written opinions have been adopted by any agency as
its own. 2 Because CREW’s complaint fails to allege the
additional facts necessary to render an OLC opinion the
“working law” of an agency, CREW’s claim that all of the
OLC’s formal written opinions are subject to disclosure under
FOIA’s reading-room provision fails as a matter of law. 3
CREW and the dissent raise four primary objections to our
analysis. First, CREW contends that our approach
erroneously places on CREW the burden of identifying a subset
of the OLC’s formal written opinions that constitutes the
“working law” of an agency and is therefore subject to
disclosure under FOIA’s reading-room provision. Granted, as
CREW emphasizes, FOIA places the burden “on the agency to
sustain its action,” 5 U.S.C. § 552(a)(4)(B), and the agency
therefore bears the burden of proving that it has not
“improperly” withheld the requested records, Tax Analysts,
492 U.S. at 142 n.3. But the OLC’s ultimate burden of proof
does not alter the antecedent requirement that CREW plead a
plausible claim. See Competitive Enter. Inst., 827 F.3d at 147
certainly is a legal determination. Id. at 10. Based on these
descriptions, the OLC opinion in EFF has all the indicia of a formal
written opinion, even as CREW defines that term in its complaint.
See Best Practices Memo 1–2, 5.
2
At the same time, we are 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. Presumably, at some point
in the OLC’s history, an agency may have adopted at least one of the
OLC’s formal written opinions as its own.
3
CREW’s derivative claim for indices of the OLC’s formal
written opinions thus also fails as a matter of law. See 5 U.S.C.
§ 552(a)(2) (agency must make available indices of records covered
by FOIA’s reading-room provision).
10
(“Jurisdiction under FOIA requires ‘a showing that an agency
has (1) “improperly”; (2) “withheld”; (3) “agency records.”’
Our task, then, is to determine whether the pleadings in the
present case allege these requirements sufficiently to survive a
motion under Rule 12(b)(6).” (citation omitted) (quoting
Reporters Comm. for Freedom of the Press, 455 U.S. at 150)).
To survive a motion to dismiss, CREW must allege in its
complaint “sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In other words, CREW
must do more than allege “facts that are ‘merely consistent
with’ a defendant’s liability” or raise only “a sheer possibility
that a defendant has acted unlawfully.” Id. (quoting Twombly,
550 U.S. at 557). Thus, regardless of the OLC’s ultimate
burden of proof, CREW must first allege factual matter
supporting a plausible claim that the OLC “improperly”
withheld its formal written opinions—that is, that FOIA’s
reading-room provision contains a “mandatory disclosure
requirement[]” obligating the OLC to make those opinions
available, Tax Analysts, 492 U.S. at 150.
We impose this standard in assessing claims brought under
FOIA’s reactive provision. Section 552(a)(3) imposes a
mandatory disclosure requirement on agencies “upon any
request for records” that “reasonably describes such records”
and complies with procedural regulations. 5 U.S.C.
§ 552(a)(3)(A). Thus, to plead a plausible claim that an
agency has “improperly” withheld its records, we require a
plaintiff proceeding under FOIA’s reactive provision to allege
that it made a procedurally compliant request. Cf. Elec.
Privacy Info. Ctr. v. IRS, 910 F.3d 1232, 1235–36, 1239–43
(D.C. Cir. 2018) (affirming dismissal of FOIA claim for tax
records of third party when plaintiff failed to obtain third-
party’s consent as required by Internal Revenue Code and
11
accompanying IRS regulations). If a plaintiff alleges that it
has made a procedurally compliant request, the agency must
then bear its burden to justify its withholding of records by, for
example, demonstrating at summary judgment that the
requested documents are exempt from disclosure. See, e.g.,
Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612,
619 (D.C. Cir. 2011).
Although FOIA’s reading-room provision differs from its
reactive provision, the analytical mechanics remain the same.
Whether an agency must disclose records under FOIA’s
reading-room provision turns not on the existence of a
plaintiff’s request but on the nature of the records—whether
they fall within one of § 552(a)(2)’s enumerated categories of
documents. 5 U.S.C. § 552(a)(2). Thus, to plead a plausible
claim that that the OLC has “improperly” withheld its formal
written opinions under FOIA’s reading-room provision,
CREW must allege sufficient factual material about the
opinions that—if taken as true—would place them into one of
§ 552(a)(2)’s enumerated categories. Then, and only then,
would the OLC bear its burden to justify withholding its formal
written opinions. But as previously explained, CREW has
alleged only that the OLC’s formal written opinions are
“controlling,” “authoritative” and “binding,” which under EFF
is insufficient to support a plausible claim that the opinions are
the “working law” of an agency subject to disclosure under
§ 552(a)(2). See 739 F.3d at 9. In sum, the OLC’s burden to
sustain its action does not alter our conclusion that CREW has
first failed to plead a plausible claim.
Second, the dissent argues that in any event, CREW’s
complaint alleges sufficient factual material to state a plausible
claim that the OLC’s formal written opinions are subject to
disclosure under FOIA’s reading-room provision. Dissent 2–
4. Revealingly, however, the dissent does not rest its analysis
12
solely on the factual allegations in CREW’s complaint—that
the OLC’s formal written opinions are “controlling,”
“authoritative” and “binding”; instead, the dissent supplements
those allegations with others not contained in the complaint.
For example, the dissent presents one of the OLC’s formal
written opinions regarding the Defense of Marriage Act as an
example of an opinion that may be subject to disclosure under
FOIA’s reading-room provision. Id. at 3–4. Regardless of
the plausibility of the complaint the dissent describes, that is
not the complaint CREW filed in the district court. We are
therefore left with assessing the sufficiency of CREW’s actual
allegations that the OLC’s formal written opinions are
“controlling,” “authoritative” and “binding.” As we have
explained, these allegations alone are insufficient to present a
plausible claim that the OLC’s formal written opinions fall
within one of the reading-room provision’s enumerated
categories.
Third, the dissent argues that we draw too much from EFF
and thus require CREW to plead around potential FOIA
exemptions. Id. at 4–6. The dissent, however, wrongly treats
EFF as only an exemption case. Although EFF ultimately
held that an OLC formal written opinion is exempt from
disclosure, the decision adopted the broader rule that the OLC’s
formal written opinions are not the “working law” of an agency
simply because they are nominally “controlling.” 739 F.3d at
9. In the context of FOIA’s reading-room provision, that an
OLC formal written opinion is not the working law of an
agency means that it does not fall within one of the reading-
room’s enumerated categories and therefore is not subject to
disclosure even absent an exemption. See Sears, Roebuck &
Co., 421 U.S. at 153. Thus, our decision today does not
require CREW to anticipate potential exemptions; consistent
with EFF, it requires only that CREW plead more than that the
OLC’s formal written opinions are “controlling” to make out a
13
plausible claim that the opinions are the working law of an
agency subject to disclosure under FOIA’s reading-room
provision.
Fourth, CREW complains that requiring it to identify a
subset of the OLC’s formal written opinions subject to FOIA’s
reading-room provision is unfair as a matter of policy because
it “imposes a burden of proof that is almost impossible for
CREW to meet.” But the purported unfairness CREW faces
is self-inflicted. CREW declined to avail itself of other
measures at its disposal, not the least of which was acceptance
of the district court’s invitation to amend its complaint as
amicus CfA has done. 4 See Am. Compl. ¶¶ 33–49, Campaign
for Accountability, No. 1:16-cv-1068 (amended complaint
identifies several subcategories of OLC’s formal written
opinions CfA believes are subject to FOIA’s reading-room
provision). 5 CREW also would have had no difficulty
carrying its pleading burden, and thereby putting the OLC to
its burden to sustain its action, had it proceeded under FOIA’s
reactive provision, § 552(a)(3), and requested formal written
opinions the OLC issued on specific subjects. See, e.g.,
Judicial Watch, Inc. v. U.S. Dep’t of Def., 913 F.3d 1106, 1108
(D.C. Cir. 2019) (addressing at summary judgment FOIA
request for memoranda prepared for the President in relation to
his decision to order military strike on Osama bin Laden’s
Pakistani compound); EFF, 739 F.3d at 6 (addressing at
summary judgment FOIA request for OLC opinion discussing
4
Unsurprisingly, after supplementing CREW’s complaint with
allegations identifying at least two subsets of the OLC’s formal
written opinions potentially subject to disclosure under FOIA’s
reading-room provision, Dissent 2–4, the dissent finds requiring
CREW to amend its complaint unnecessary, id. at 6–7.
5
We do not address the merits of CfA’s amended complaint.
14
FBI’s use of “exigent letters”). CREW’s failure to pursue
these alternatives causes its cries of unfairness to ring hollow. 6
6
CREW raises two other objections that we dismiss by
footnote. First, CREW asserts that the district court “err[ed] in its
construction of the fundamental nature of CREW’s claims” by
“mischaracteriz[ing] the Complaint as premised on a claim for all
OLC opinions.” CREW thus suggests the district court improperly
understood CREW’s complaint to seek not only the OLC’s formal
written opinions but also its informal opinions and other forms of
“controlling” legal advice. We are not persuaded. The district
court accurately recounted that “the complaint contends that ‘OLC’s
formal written opinions, described in the Best Practices Memo,’ are
subject to mandatory publication under 5 U.S.C. § 552(a)(2).” 298
F. Supp. 3d at 153 (emphasis added) (quoting Compl. ¶ 27). The
court then proceeded to discuss only “formal written opinions,” using
the phrase over twenty times in a five-page opinion. See id. at 152–
56. And in discussing the relevance of our EFF decision, the district
court emphasized “[t]here is every indication” that the OLC opinion
at issue in that case “was both formal and written.” Id. at 154 n.4.
CREW’s assertion that the district court misconstrued its complaint
is therefore baseless.
Second, CREW complains that the district court misconstrued
EFF as “establishing that all or virtually all OLC opinions CREW
seeks are privileged and therefore not subject to FOIA’s reading
room provision.” CREW bases its complaint on the district court’s
observation that “[e]ven more broadly, [EFF] suggests that many of
OLC’s formal written opinions would be subject to the same
deliberative process privilege.” 298 F. Supp. 3d at 155. Here it is
CREW, not the district court, who is guilty of misconstruction. The
district court’s observation that EFF “suggests that many of OLC’s
formal written opinions” are privileged—a fair reading of EFF—is a
far cry from the proposition CREW now attributes to the court: that
EFF “establish[es] that all or virtually all OLC opinions” are
privileged. We see no error in the district court’s characterization
of EFF.
15
For the foregoing reasons, the judgment of the district
court dismissing CREW’s complaint is affirmed.
So ordered.
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 (2007) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (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.
* * *
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, and Ashcroft v. Iqbal, 556 U.S. 662, 678 (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
2
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)
3
(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
4
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
5
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. 9 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. 8-9. 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.
6
Toledo, 446 U.S. 635, 640 (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
7
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. 13. 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
8
reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. 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.