City of Chicago v. TREA ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2167
CITY OF CHICAGO,
Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF THE TREASURY,
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 3417—George W. Lindberg, Judge.
____________
ARGUED FEBRUARY 15, 2005—DECIDED SEPTEMBER 12, 2005
____________
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. For the third time in four years,
we consider whether the Freedom of Information Act
(“FOIA”) entitles the City of Chicago (the “City”) to informa-
tion from the Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) databases regarding the sale and tracing of fire-
arms. In our two previous stabs at the issue, we affirmed
the district court’s ruling that ATF must provide the City
access to the databases. Subsequent to the release of our
second opinion, Congress passed the Consolidated Appropri-
ations Act of 2005, which cuts funding for data requests like
the City’s and also provides that the data “shall be immune
2 No. 01-2167
from judicial process.” Pub. L. 108-447, 118 Stat. 2809,
2859-60. In light of the new law, we granted ATF’s motion
for a rehearing and requested briefs regarding the law’s
impact on this case. For the reasons stated herein, we
vacate our prior opinions, reverse the district court’s ruling,
and remand with instructions to enter judgment in favor of
ATF.
I. Background
We assume a familiarity with our prior opinions and
only briefly sketch the background of the case in order to
frame the issue before us. In March 2000, the City submit-
ted a formal FOIA request to ATF for certain local and
national Trace Database and Multiple Sales Database
information. ATF complied with the request in part, but
it refused to disclose a significant portion of the information
requested, claiming that it was protected under FOIA
exemptions for privacy and law enforcement purposes. The
City then filed this federal suit under FOIA in pursuit of
the withheld information. The district court granted the
City’s motion for summary judgment, ordered ATF to
disclose the information, and stayed the order pending
appeal.
On April 25, 2002, we affirmed the district court’s rul-
ing on the ground that none of the FOIA exemptions
justified withholding the data. City of Chicago v. United
States Dep’t of Treasury, 287 F.3d 628, amended on denial
of rehearing, 297 F.3d 672 (7th Cir. 2002) (“City of Chicago
I”). ATF filed a petition for a writ of certiorari and the
Supreme Court granted the petition. Dep’t of Treasury v.
City of Chicago, 537 U.S. 1018, 123 S.Ct. 536, 154 L.Ed.2d
424 (2002). Congress then passed the Consolidated Appro-
priations Resolution of 2003, which contained a rider
prohibiting the use of appropriated funds “to take any
action based upon any provision of [the FOIA] with respect
No. 01-2167 3
to” the databases in question here. Pub. L. No. 108-7, § 644,
117 Stat. 11 (2003). The Supreme Court vacated
the judgment of this court and remanded the case to
determine “what effect, if any,” the rider had on the case.
Dep’t of Justice v. City of Chicago, 537 U.S. 1229, 123 S.Ct.
1352, 154 L.Ed.2d 1097 (2003). After the remand but before
oral argument, Congress passed another appropriations
rider that prohibited the use of appropriated funds “to
disclose to the public” the firearms trace or multiple sales
data. Pub. L. No. 108-199, 118 Stat. 3 (2004). On remand,
we again found in favor of the City, concluding that the
riders precluded the use of funding to retrieve the data but
did not alter the City’s right to access the information. City
of Chicago v. United States Dep’t of Treasury, 384 F.3d 429(7th Cir. 2004) (“City of Chicago II”). To alleviate the
funding problem, we took the City up on its suggestion to
appoint a special master to retrieve the data from ATF at
the City’s cost.
ATF filed a petition for rehearing with a suggestion for a
rehearing en banc. While that petition was pending,
Congress passed the Consolidated Appropriations Act
of 2005, which contained yet another rider provision per-
taining to the ATF sales and tracing databases. To consider
the effect of this new law, we granted ATF’s petition to the
extent it requested a panel rehearing.
II. Discussion
The parties predictably take diametrically opposed
positions regarding the impact of the relevant language in
the 2005 Appropriations Act. In the City’s view, it changes
nothing. In ATF’s view, it changes everything. We turn
to the language of the Act for guidance:
No funds appropriated under this or any other Act with
respect to any fiscal year may be used to disclose part
or all of the contents of the Firearms Trace System
4 No. 01-2167
database maintained by the National Trace Center of
the Bureau of Alcohol, Tobacco, Firearms, and Explo-
sives or any information required to be kept by licens-
ees pursuant to section 923(g) of title 18, United States
Code, or required to be reported pursuant to para-
graphs (3) and (7) of such section 923(g), to anyone
other than a Federal, State, or local law enforcement
agency or a prosecutor solely in connection with and for
use in a bona fide criminal investigation or prosecution
and then only such information as pertains to the
geographic jurisdiction of the law enforcement agency
requesting the disclosure and not for use in any civil
action or proceeding other than an action or proceeding
commenced by the Bureau of Alcohol, Tobacco, Fire-
arms, and Explosives, or a review of such an action or
proceeding, to enforce the provisions of chapter 44 of
such title [18 USCS §§ 921 et seq.], and all such data
shall be immune from legal process and shall not be
subject to subpoena or other discovery in any civil action
in a State or Federal court or in any administrative
proceeding other than a proceeding commenced by the
Bureau of Alcohol, Tobacco, Firearms, and Explosives
to enforce the provisions of that chapter, or a review of
such an action or proceeding; except that this proviso
shall not be construed to prevent the disclosure of
statistical information concerning total production,
importation, and exportation by each licensed importer
(as defined in section 921(a)(9) of such title) and li-
censed manufacturer (as defined in section 921(a)(10) of
such title).
Pub. L. No. 108-447, 118 Stat. 2809, 2859-60, codified as
amended at 18 U.S.C. § 923 note (2004) (emphasis added).
The plain language of the Act, particularly the italicized
passage that makes the data at issue in this case “immune
from legal process,” supports ATF’s view that the legal
landscape has changed dramatically since our previous
No. 01-2167 5
opinion. Like the two previous riders, the 2005 rider
deprives ATF of funding to act on requests for disclosure of
the firearms trace database and the data assembled
pursuant to 18 U.S.C. §§ 923(g), 923(g)(3), and 923(g)(7),
which all parties agree includes the data at issue in this
case. Critically, the 2005 rider adds the phrase “and all
such data shall be immune from legal process and shall not
be subject to subpoena or other discovery in any civil action
in a State or Federal court.” Congress’ obvious intention in
adding the “immune from legal process” language to the
funding restriction that existed under prior riders was to
cut off access to the databases for any reason not related to
law enforcement. The public is now doubly restricted from
access to these databases: first, the funding restriction
prevents the federal agency that collects the data from
acting on a request for disclosure; and second, the request-
ing party has no judicial remedy as the information is
immune from legal process and not subject to subpoena or
otherwise discoverable in a civil action. The new “immune
from legal process” language in the rider also demonstrates
that our solution to the funding restriction in the prior
riders—appointment of a special master to be paid for by
the City—is no longer tenable.
The City bravely takes the contrary position and argues
that the rider is no different than its predecessors. Accord-
ing to the City, the 2005 rider, like the two previous riders,
simply prohibits the use of appropriated funds to dis-
close trace and multiple sales data. The argument fails
to account for Congress’ mandate that “all such data
shall be immune from legal process.” To get around this
language, which clearly distinguishes the 2005 rider from
the prior riders, the City argues that the antecedent to the
phrase “such data” is ambiguous. We see no ambiguity.1 The
1
If we agreed with the City’s argument that the statutory
(continued...)
6 No. 01-2167
only data mentioned in the paragraph prior to the reference
to “such data” is the tracing data and the data regarding
multiple sales, and those data are the clear antecedent to
the phrase “such data.” The City ignores this common-sense
reading of the statute and asserts that “such data” refers to
the data requested by law enforcement agencies for use in
criminal investigations (the rider allows use of appropriated
funds for these requests). That is not a reasonable reading
of the statute; a plain reading of the statute illustrates that
it refers generally to the multiple sales and tracing data,
rather than to some subset of that data. Furthermore,
Congress’ clear intention in adding the “immune from legal
process” language was to cut off access to the databases.
Under the City’s strained construction of the statute, the
portion of the databases in law enforcement’s hands
would be “immune from legal process,” but the remaining
portion of the databases, the extensive data not produced to
law enforcement, would be accessible to anyone willing to
pay for it. Such a reading would thwart Congress’ intention
to bar access to the databases, and we accordingly reject it.
Smith v. Bowen, 815 F.2d 1152, 1154 (7th Cir. 1987) (noting
that a construction is inappropriate “if it would lead to
absurd results or would thwart the obvious purposes of the
statute.”).
1
(...continued)
language is ambiguous (which we do not), we would turn to
the legislative history of the statute. Exxon Mobil Corp. v.
Allapattah Servs., Inc., 125 S.Ct. 2611, 2626 (2005). When pressed
at oral argument, counsel for the City conceded that “the people
who wrote the legislative history are not our friends.” We agree
with the concession; the relevant legislative history clearly
supports ATF’s position and fails to offer a hint of support for the
City’s position. House Report to 2005 Act at 30. More importantly,
though, the people who wrote the text of the statute and enacted
it into law were not the City’s friends.
No. 01-2167 7
The City next questions whether a special master’s
retrieval of data is a form of “legal process” within the
meaning of the phrase, “and all such data shall be immune
from legal process.” This is an artificially narrow character-
ization of the situation. We issued an opinion, subject
to appeal, ordering ATF to permit a special master to en-
ter its property and retrieve information to be turned
over to the City. In other words, the City’s entitlement
to the information, along with the special master’s appoint-
ment and charge, derived from a court order based
on federal law. Such a court order is unquestionably
“legal process.” See Washington State Dep’t of Social &
Health Servs. v. Guardianship Estate of Keffeler, 537 U.S.
371, 385, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003) (analyzing
meaning of Social Security definition of “legal process” and
noting that it entails “utilization of some judicial or quasi-
judicial mechanism . . . by which control over property
passes from one person to another.”). See also Black’s Law
Dictionary 1370 (4th ed. 1968) (defining “legal process” as
“a writ, warrant, mandate, or other process issuing from a
court of justice, such as an attachment, execution, injunc-
tion, etc.”).
We also think that the 2005 Act amounts to a change
in substantive FOIA law in that it exempts from dis-
closure data previously available to the public under
FOIA. Cf. City of Chicago I, 287 F.3d at 631 (concluding
that FOIA required ATF to disclose the tracing and multi-
ple sales data to the City); City of Chicago II, 384 F.3d at
435 (same), with 18 U.S.C. § 923 (barring disclosure of
tracing and multiple sales data). FOIA’s Exemption 3
provides that the statute’s general duty of disclosure does
not apply to matters “specifically exempted from disclosure
by statute . . . provided that such statute . . . requires that
the matters be withheld from the public in such a manner
as to leave no discretion on the issue . . . or refers to
particular types of matters to be withheld.” 5 U.S.C. §
8 No. 01-2167
552(b)(3). In the instant case, Congress could not have been
more specific about what types of records should be with-
held: “[T]he contents of the Firearms Trace System data-
base . . . and . . . any information required to be kept by
licensees pursuant to section 923(g) of title 18, United
States Code, or required to be reported pursuant to para-
graphs (3) and (7) of such section 923(g) . . . .” 18 U.S.C.
§ 923. Moreover, the funding restriction deprives ATF of
any discretion to act on the matter. Finally, although
Congress did not specifically use the verb “withhold” when
referring to the trace and sales data, its intent to bar access
to the information is unmistakable. Prior to the rider, a
requesting party could obtain the information through ATF
or the courts. In the 2005 rider, Congress blocked both
avenues of relief by stripping ATF and the courts of the
ability to act on the public’s requests, effectively exempting
the information from disclosure. As we have observed on
prior occasions, “it is not adequate discharge of duty for
courts to say: We see what you are driving at, but you have
not said it, and therefore we shall go on as before.” Thomas
v. Peters, 48 F.3d 1000, 1011 (7th Cir. 1995) (Easterbrook,
J., concurring) (citing Johnson v. United States, 163 F. 30,
32 (1st Cir. 1908) (Holmes, J.)). We accordingly conclude
that the new rider qualifies as an Exemption 3 statute and
substantively bars disclosure of the databases at issue.
The City, for its part, maintains that the 2005 rider did
not effect a change in the law. According to the City and
various amici, Congressional intent on the matter is unclear
and this lack of clarity is even more significant considering
that the relevant language was a very small part of an
extensive appropriations bill. We disagree. First, as ex-
plained above, Congress has clearly expressed its intent to
bar access to the information. Congressional intent becomes
even clearer when one considers the history of this litiga-
tion. In our prior opinion, we concluded that the 2003 and
2004 measures did not specifically exempt the databases
No. 01-2167 9
from disclosure; they merely prohibited the use of appropri-
ated funds to disclose the information. City of Chicago II,
384 F.3d at 432-33. In the 2005 Act, Congress responded to
our conclusion that this ban was merely about funding by
taking away any possible judicial remedy for discovery of
the information. The only reasonable explanation for
Congress’ action is that it intended to preclude disclosure of
the information. As to the fact that this was appropriations
legislation, the City and amici raise various policy concerns.
Even if we shared their concerns, such policy considerations
do not justify the result they seek; we cannot ignore clear
expressions of Congressional intent, regardless of whether
the end product is an appropriations rider or a statute that
has proceeded through the more typical avenues of delibera-
tion. See Robertson v. Seattle Audubon Society, 503 U.S.
429, 440, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992) (“Con-
gress . . . may amend substantive law in an appropria-
tions statute, as long as it does so clearly.”); Metro Broad-
casting, Inc. v. FCC, 497 U.S. 547, 578 n.29, 110 S.Ct. 2997,
111 L.Ed.2d 445 (1990), vacated on other grounds
by Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115
S.Ct. 2097, 132 L.Ed.2d 158 (“Appropriations Acts, like any
other laws, are binding because they are ‘passe[d] [by] both
Houses . . . and signed by the President.’ ”).
The remaining questions stem from the fact that the 2005
Act is intervening legislation enacted while this case was on
appeal. ATF does not see this as a problem; it contends that
the 2005 Act applies in this case “under the settled principle
that a court is to apply the law in effect at the time the
court rules.” ATF Supp. Brief on Rehearing at 9. The issue
is not as well-settled as ATF would have it. Indeed, in
Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483.
128 L.Ed.2d 229 (1994), a case involving intervening
legislation that was held not to apply to cases pending on
appeal, the Court acknowledged the apparent tension
between the canon that “a court is to apply the law in effect
10 No. 01-2167
at the time it renders its decision” and the axiom that
“retroactivity is not favored in the law.” Id. at 264. The
Court explained that the two principles can coexist because
prospectivity is only a default rule, making it possible to
apply the law in effect at the time of the decision in appro-
priate situations. Id. at 272-73.
We think that this is a situation where it is appropriate
to apply the law in effect at the time of our ruling. Congress
did not specifically authorize application of the 2005 Act to
pending cases. Nevertheless, “[e]ven absent legislative
authorization, application of new statutes passed after the
events in suit is unquestionably proper in many situations.
When the intervening statute authorizes or affects the
propriety of prospective relief, application of the new
provision is not retroactive.” Landgraf, 511 U.S. at 273. The
City does not want damages from ATF. Rather, it invokes
the court’s jurisdiction under FOIA to “enjoin the agency
from withholding agency records and to order the produc-
tion of any agency records improperly withheld from the
complainant,” 5 U.S.C. § 552(a)(4)(B), and it seeks an order
compelling ATF to turn over data—relief that operates in
futuro, rather than retrospectively. Cf. Landgraf, 511 U.S.
at 282 (declining to apply new rule on compensatory
damages to case on appeal because compensatory damages
“are quintessentially backward looking.”). See also Eco Mfg.
v. Honeywell Int’l, 357 F.3d 649, 652 (7th Cir. 2003). The
intervening 2005 Appropriations Act clearly affects the
propriety of such prospective relief. Furthermore, the
relevant event for assessing retroactivity here is the
disclosure of the withheld data, which is a potential future
event, not a past, completed event. In these circumstances,
“the plaintiff ha[s] no vested right in the decree entered by
the trial court,” Landgraf, 511 U.S. at 274, and it is ac-
cordingly proper to apply the law in effect at the time of our
decision.
No. 01-2167 11
A second question arising from the intervening nature
of this legislation is whether it offends any fundamental
principles of the separation of powers. The Supreme
Court has identified three sets of circumstances where
legislation encroaches on judicial power in a manner that
Article III forbids. Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 218, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). First, as
explained in United States v. Klein, 80 U.S. 128, 20 L.Ed.
519 (1872), Congress cannot “prescribe rules of decision to
the Judicial Department of the government in cases
pending before it.” Id. at 146. Second, “Congress cannot vest
review of the decisions of Article III courts in officials of the
Executive Branch.” Plaut, 514 U.S. at 218 (citing Hayburn’s
Case, 2 U.S. 409, 1 L.Ed. 436 (1792)). Third, Congress
cannot command federal courts to retroactively open final
judgments. Plaut, 514 U.S. at 219. Recognizing that the
2005 Act does not implicate the last two principles because
it does not vest review of our decisions in the executive
branch or involve a final decision (the case is still pending
on appeal), the City focuses on the rule announced in Klein
that Congress cannot prescribe rules of decision for pending
cases. According to the City, the constitutional infirmity
here is that Congress is engaging in appellate review of our
prior decision by directing the result in this case without
changing the underlying substantive law.
The City’s separation of powers argument depends on the
erroneous premise that the 2005 rider did not change
underlying substantive law. As explained above, the
2005 rider amounts to a substantive change in the underly-
ing law in that it exempts from disclosure data previously
available to the public under FOIA. This conclusion makes
it unnecessary to address the City’s Klein challenge because
“[w]hatever the precise scope of Klein . . . later decisions
have made it clear that its prohibition does not take hold
when Congress ‘amend[s] applicable law.’ ” Plaut, 514 U.S.
at 218 (citing Robertson v. Seattle Audubon Soc., 503 U.S.
12 No. 01-2167
429, 441 (1992)). See also Miller v. French, 530 U.S. 327,
348, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000).
The City’s final bullet is a creative First Amendment
challenge to the 2005 rider. According to the City, “[i]f the
riders are construed to bar disclosure of trace and multiple
sales data, they violate the First Amendment.” City Brief on
Remand at 45. To reach that conclusion, the City relies on
the premise that Congress created a limited public forum
when it enacted FOIA, and maintains that barring disclo-
sure of the databases in question is both unreasonable and
discrimination on the basis of viewpoint. The argument is
without merit. As a preliminary matter, we note that the
First Amendment “does not mandate . . . a right of access to
government information or sources of information within
the government’s control.” Houchins v. KQED, Inc., 438
U.S. 1, 14, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978). In addi-
tion, though the City and amici cite and quote numerous
First Amendment cases, none of the authority assembled is
directly on point or implies that Congress’ ban on disclosure
of the data would be constitutionally problematic. Heavy
emphasis is placed on the Supreme Court’s decision in Legal
Services Corp v. Velazquez, 531 U.S. 533, 121 S.Ct. 1043,
149 L.Ed.2d 63 (2001). But that case, like the other cases
cited, did not involve Congressional limitations on access to
information within the government’s control. Furthermore,
the restriction at issue in Velazquez has little in common
with the rider in the instant case. The Velazquez majority
struck down a law that prohibited recipients of Legal
Services Corporation funding from challenging the validity
of welfare laws, which was a legislative attempt to single
out particular theories and arguments for suppression. Id.
at 537-38. The rider in the instant case, on the other hand,
applies across the board, barring access to the databases
regardless of whether the requester is the NRA, the City, or
some other interested party. Because the City has cited no
authority for the proposition that a Congressional ban on
No. 01-2167 13
the release of certain governmental records violates the
First Amendment, we reject the argument.
III. Conclusion
For the reasons stated herein, we vacate our prior
opinions, reverse the district court, and remand with
instructions to enter judgment in favor of ATF.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-12-05