Citizens for Responsibility and Ethics in Washington v. DOJ , 846 F.3d 1235 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2016 Decided January 31, 2017
No. 16-5110
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01291)
Alan B. Morrison argued the cause for appellant. With
him on the briefs was Adam J. Rappaport.
Scott L. Nelson and Rachel M. Clattenburg were on the
brief for amicus curiae Public Citizen, Inc. in support of
appellant.
Daniel Tenny, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Michael S. Raab, Attorney.
2
Before: TATEL and WILKINS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Section 704 of the Administrative
Procedure Act limits judicial review under that statute to
agency actions “for which there is no other adequate remedy
in a court.” 5 U.S.C. § 704. Appellant filed suit under the
APA to compel the Department of Justice’s Office of Legal
Counsel to meet its disclosure obligations under the “reading-
room” provision of the Freedom of Information Act. 5 U.S.C.
§ 552(a)(2). The district court dismissed the case, concluding
that appellant has an adequate remedy under FOIA. For the
reasons set forth below, we agree and affirm.
I.
“For decades, [the Office of Legal Counsel (OLC)] has
been the most significant centralized source of legal advice
within the Executive Branch.” Trevor W. Morrison, Stare
Decisis in the Office of Legal Counsel, 110 Colum. L. Rev.
1448, 1451 (2010). Indeed, executive-branch officials seek
OLC’s opinion on some of the weightiest matters in our
public life: from the president’s authority to direct the use of
military force without congressional approval, to the
standards governing military interrogation of “alien unlawful
combatants,” to the president’s power to institute a blockade
of Cuba. Office of Legal Counsel, Authority to Use Military
Force in Libya (Apr. 1, 2011); Office of Legal Counsel,
Military Interrogation of Alien Unlawful Combatants Held
Outside the United States (Mar. 14, 2003); Office of Legal
Counsel, Authority of the President to Blockade Cuba (Jan.
25, 1961).
3
OLC’s authority to render advice is, in some sense,
nearly as old as the Republic itself. In the Judiciary Act of
1789, Congress authorized the Attorney General “to give his
advice and opinion upon questions of law when required by
the President of the United States, or when requested by the
heads of any of the departments, touching any matters that
may concern their departments.” Act of Sept. 24, 1789, ch.
20, § 35, 1 Stat. 73, 93; see 28 U.S.C. §§ 511-513 (codified as
amended). The Attorney General has, in turn, delegated to
OLC authority to “[p]repar[e] the formal opinions of the
Attorney General; render[] informal opinions and legal advice
to the various agencies of the Government; and assist[] the
Attorney General in the performance of his functions as legal
adviser to the President.” 28 C.F.R. § 0.25; see Luther A.
Huston, The Department of Justice 61 (1967) (recounting the
formation of OLC).
OLC has a “longstanding internal process in place for
regular consideration” of whether to share “significant
opinions” with the public. Memorandum from David J.
Barron, Acting Assistant Attorney General, to Attorneys of
the Office, Best Practices for OLC Legal Advice and Written
Opinions 5 (July 16, 2010). Attorneys who have worked on or
reviewed an opinion give initial recommendations about
whether publication is appropriate that are “forwarded to an
internal publication review committee.” Id. “If the committee
makes a preliminary judgment that the opinion should be
published, the opinion is circulated to the requesting
Executive Branch official or agency and any other agencies
that have interests that might be affected by publication, to
solicit their views” before the committee renders a “final
judgment.” Id. In making this determination, OLC “operates
from the presumption that it should make its significant
opinions fully and promptly available.” Id. An opinion is
deemed significant if, for example, it possesses “potential
4
importance . . . to other agencies or officials in the Executive
Branch”; there is a “likelihood that similar questions may
arise in the future”; it is of “historical importance”; or it has
potential significance to OLC’s “overall jurisprudence.” Id.Other factors militate against disclosure, such as when
publication would “reveal classified or other sensitive
information relating to national security”; “interfere with
federal law enforcement efforts”; undermine “internal
Executive Branch deliberative processes” or “the
confidentiality of information covered by the attorney-client
relationship between OLC and other executive offices”; or
result in the disclosure of documents “that are of little interest
to the public.” Id. at 5–6.
Unsatisfied that these procedures provide the public with
the access the Freedom of Information Act demands,
appellant Citizens for Responsibility and Ethics in
Washington (CREW) initiated this litigation. CREW is a non-
profit corporation whose organizational mission is “to
protect[] the rights of citizens to be informed about the
activities of government officials.” By its own account,
CREW is no stranger to using FOIA to obtain and disseminate
information “about government officials and their actions,”
including OLC. For instance, before commencing this action
it filed a separate FOIA request—not at issue here—“for all
[OLC] opinions discussing the authority of the president as
well as any executive branch agency or agency component to
conduct domestic and foreign surveillance.”
Before filing suit, CREW sent a letter to OLC requesting
that it comply with its obligations under FOIA section
552(a)(2)—the so-called “reading-room” provision—which
requires agencies to “make available for public inspection in
an electronic format” certain records, including “final
opinions . . . made in the adjudication of cases” and “those
5
statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal
Register.” Letter to Assistant Attorney General Virginia A.
Seitz from Anne L. Weismann (July 3, 2013); 5 U.S.C.
§ 552(a)(2). CREW argued that OLC opinions are subject to
disclosure under the reading-room provision because they
“function as binding law on the executive branch.” Letter to
Assistant Attorney General Seitz.
In response, OLC explained that, in its view, FOIA
exempts OLC opinions from disclosure because they are
“ordinarily covered by [FOIA’s] attorney-client and
deliberative process privileges” and, “as confidential and pre-
decisional legal advice, . . . constitute neither ‘final
opinions . . . made in the adjudication of cases’ nor
‘statements of policy and interpretations which have been
adopted by the agency.’” Letter to Anne L. Weismann from
Deputy Assistant Attorney General John E. Bies (Aug. 20,
2013). “Nevertheless,” OLC stated, it “make[s] an
individualized, case-by-case determination with respect to
whether each opinion . . . is appropriate for publication” and,
in response to FOIA requests seeking specific records,
“consider[s] whether to waive applicable privileges and
release the opinion as a matter of administrative discretion.”
Id.Shortly after receiving OLC’s response, CREW
commenced this action against DOJ and certain DOJ officials.
The amended complaint alleges a claim under the APA, 5
U.S.C. § 702, challenging as arbitrary, capricious, and
contrary to law OLC’s purported failure to meets its
disclosure obligations under FOIA’s reading-room
requirements, 5 U.S.C. § 552(a)(2). As its primary form of
relief, CREW seeks an injunction directing OLC to disclose
all documents subject to that provision. The injunction would
6
have four features: (1) it would apply prospectively, that is, to
documents not yet created; (2) it would impose an affirmative
obligation to disclose, that is, OLC would disclose documents
regardless of whether someone specifically requests a given
document; (3) it would mandate that OLC make documents
available to the public, as opposed to just CREW; and (4) it
would require OLC to make available to the public an index
of all such documents.
DOJ moved to dismiss the amended complaint on
multiple grounds, and on March 7, 2016, the district court
granted that motion. As the court explained, because CREW
challenges OLC’s actions under the APA, “it must satisfy the
APA’s predicate requirements for bringing suit,” namely, that
“there is no other adequate remedy” available. Citizens for
Responsibility and Ethics in Washington v. DOJ, 164 F. Supp.
3d 145, 151 (D.D.C. 2016); 5 U.S.C. § 704. The district court
concluded that FOIA provides an adequate remedy, thus
barring CREW’s APA claim.
CREW now appeals. Our review is de novo.
II.
FOIA imposes on federal agencies both reactive and
affirmative obligations to make information available to the
public. In the former category, the act’s most familiar
provision, section 552(a)(3) provides that agencies must
“make . . . records promptly available” in response to specific
requests. 5 U.S.C. § 552(a)(3)(A). In the latter category are
two distinct affirmative disclosure obligations. One, section
552(a)(1), requires agencies to “publish in the Federal
Register” certain records, such as “substantive rules of
general applicability adopted as authorized by law.” Id.§§ 552(a)(1), (a)(1)(d). The other, section 552(a)(2)—the
reading-room provision at issue in this case—requires
7
agencies to “make [certain records] available for public
inspection in an electronic format[,]” including “statements of
policy and interpretations which have been adopted by the
agency and are not published in the Federal Register.” Id.
§§ 552(a)(2), (a)(2)(B).
To breathe life into these obligations, FOIA provides for
judicial review. Section 552(a)(4)(B) grants district courts
jurisdiction to review “de novo” an agency’s decision to
withhold records and empowers courts “to enjoin the agency
from withholding agency records and to order the production
of any agency records improperly withheld from the
complainant.” Id. § 552(a)(4)(B). Our precedent makes clear
that FOIA’s “remedial provision . . . governs judicial review
of all three types of documents”—that is, requests for
information under sections 552(a)(1), (2), or (3). Kennecott
Utah Copper Corp. v. Department of Interior, 88 F.3d 1191,
1202 (D.C. Cir. 1996). Equally certain under our case law, a
plaintiff may bring an action under FOIA to enforce the
reading-room provision, and may do so without first making a
request for specific records under section 552(a)(3). Irons v.
Schuyler, 465 F.2d 608, 614 (D.C. Cir. 1972) (“[T]he
opinions and orders referred to in Section 552(a)(2), when
properly requested, are required to be made available, and . . .
such requirement is judicially enforceable without further
identification under Section 552(a)(3), even though the
agency has failed to make them available as required by
Section 552(a)(2).”).
Concerned that FOIA’s remedial provision does not
empower a district court to order all the relief necessary to
force an agency to meet its reading-room obligations, CREW
brought its claim under the APA. As noted above, however,
APA section 704 limits review under that statute to agency
8
actions “for which there is no other adequate remedy in a
court.” 5 U.S.C. § 704.
The issue in this case—whether CREW can pursue this
suit under the APA because FOIA does not provide an
“adequate remedy”—is easy to state but difficult to resolve.
Indeed, this is a case of first impression, as none of our
section 704 cases concerns FOIA, nor do our FOIA cases
address section 704. See Kennecott, 88 F.3d at 1203(declining to address whether the APA authorizes a district
court to order publication of a document for an alleged
violation of FOIA section 552(a)(1)); Tax Analysts v. IRS, 117
F.3d 607, 610 n.4 (D.C. Cir. 1997) (“Kennecott left open the
question whether other sources of law might authorize
additional remedial orders in FOIA cases.”).
Befitting this novel question, the parties’ briefs are both
excellent and interesting. Both CREW and the Government
appear to narrowly construe FOIA’s remedial provision as
empowering a district court faced with a violation of the
reading-room requirement to order only the disclosure to a
plaintiff of extant documents in response to a specific request.
But they have significantly different views of the
consequences. According to CREW, this gap between the
relief it seeks and the relief available under FOIA means that
a claim under FOIA cannot qualify as an “adequate remedy”
barring its APA claim. According to DOJ, however, because
an alternative remedy need not be “identical” in order to be
“adequate,” CREW’s APA claim fails even under a
constricted view of the relief FOIA affords. In a helpful
amicus brief, Public Citizen argues that both are wrong. It
urges us to read FOIA’s remedial provision broadly, as
encompassing all the relief sought by CREW.
9
To resolve this issue, we begin by considering whether
CREW may obtain the relief it wants under FOIA. For if it
can, as Public Citizen thinks, then we need not explore what
“adequate” means under the APA. But if, as CREW believes,
FOIA does not provide the relief it seeks, then we must
consider whether, as the Government insists, FOIA
nonetheless offers an adequate remedy.
III.
CREW seeks an injunction with four features it believes
are necessary to guarantee OLC meets its reading-room
obligations. First, the injunction would have prospective
effect—i.e., it would apply to opinions not yet written.
Second, it would impose an affirmative obligation to disclose
on OLC—i.e., without need for a specific prior request. Third,
it would mandate disclosure to the public, as opposed to just
CREW. Fourth, it would require OLC to make available to the
public an index detailing all documents subject to the reading-
room provision.
We start with the proposition that FOIA section
552(a)(4)(B) vests courts with broad equitable authority.
True, as the Supreme Court explained in Renegotiation Board
v. Bannercraft Clothing Co., 415 U.S. 1 (1974), that provision
“explicitly confers jurisdiction to grant injunctive relief of a
described type, namely, ‘to enjoin the agency from
withholding agency records and to order the production of
any agency records improperly withheld from the
complainant.’” Id. at 18 (citing 5 U.S.C. § 552(a)(4)(B)). But
as the Court made clear in the same decision, Congress did
not intend that language “to limit the inherent powers of an
equity court” in FOIA cases. Id. at 20; see Payne Enterprises
v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (“FOIA
imposes no limits on courts’ equitable powers in enforcing its
terms.” (citing Renegotiaton Board, 415 U.S. at 19–20)).
10
“Once invoked, the scope of a district court’s equitable
powers . . . is broad, for breadth and flexibility are inherent in
equitable remedies.” Brown v. Plata, 563 U.S. 493, 538
(2011) (citations and internal quotation marks omitted). This
is especially so where, as here, “federal law is at issue and
‘the public interest is involved,’ [as] a federal court's
‘equitable powers assume an even broader and more flexible
character than when only a private controversy is at stake.’”
Kansas v. Nebraska, 135 S. Ct. 1042, 1053 (2015) (quoting
Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)).
This circuit’s case law reflects the wide latitude courts
possess to fashion remedies under FOIA, including the power
to issue prospective injunctive relief. In Payne, we confronted
the Air Force’s repeated failure to disclose documents in
response to a company’s FOIA requests. 837 F.2d at 487.
Frustrated by the need to pursue successive and “invariably
successful” challenges every time it sought such documents,
the company filed suit seeking an “injunct[ion] . . . to compel
[the Air Force] to release” the documents. Id. at 487. We held
that the company “ha[d] an undeniable right” to the sought-
after “information . . . and [was] entitled to a judgment in
support of its claim.” Id. at 494. Accordingly, we instructed
the district court to on remand “consider the propriety of
injunctive relief.” Id. at 495. “In particular,” we directed the
court to “evaluate the likelihood that the Air Force will return
to its illicit practice of delay in the absence of an injunction.”
Id.Our later decisions confirm that a plaintiff may challenge
an agency’s “policy or practice” where it “will impair the
party’s lawful access to information in the future.” Newport
Aeronautical Sales v. Air Force, 684 F.3d. 160, 164 (D.C. Cir.
2012) (quoting Payne, 837 F.2d at 491) (emphasis added). In
other contexts, we have recognized courts’ power to order
11
relief beyond the simple release of extant records. See Morley
v. CIA, 508 F.3d 1108, 1120 (D.C. Cir. 2007) (acknowledging
a district court’s power to direct an agency to conduct
additional searches for records in response to a FOIA
request).
Following Renegotiation Board, Payne, and these other
decisions, we have little trouble concluding that a district
court possesses authority to grant the first two categories of
relief CREW seeks—a prospective injunction with an
affirmative duty to disclose. The third and fourth categories of
relief present a trickier problem.
Although broad, courts’ remedial authority under section
552(a)(4)(B) is not boundless. For instance, in Kissinger v.
Reporters Committee for Freedom of the Press, 445 U.S. 136(1980), the Supreme Court held that “federal courts have no
authority to order the production” of records no longer in an
agency’s possession “even if a document requested under the
FOIA is wrongfully” in the hands of a third party. Id. at 139.
In Kennecott, we announced another limitation on FOIA
remedial power of particular relevance to this case. There, the
plaintiff filed an action under FOIA seeking an injunction
requiring publication in the Federal Register, pursuant to
section 552(a)(1), of regulations that had been withdrawn by
the Interior Department. Kennecott, 88 F.3d at 1201.
Rejecting this request, we held that section 552(a)(4)(B)
“does not authorize district courts to order publication” of
documents subject to the provisions of section 552(a)(1). Id.
at 1202. Although acknowledging that “it might seem strange
for Congress to command agencies to ‘currently publish’ or
‘promptly publish’ documents, without in the same statute
providing courts with power to order publication,” we
nonetheless concluded “that is exactly what Congress
12
intended.” Id. at 1202–03. Section 552(a)(4)(B), we said, “is
aimed at relieving the injury suffered by the individual
complainant, not by the general public” as “[i]t allows district
courts to order ‘the production of any agency records
improperly withheld from the complainant,’ not agency
records withheld from the public.” Id. at 1203 (citing 5 U.S.C.
§ 552(a)(4)(B)) (emphasis in original). Distinguishing
between “[p]roviding documents to the individual” and
“ordering publication[,]” we held that, under section
552(a)(4)(B), a district court is without authority to do the
latter. Id.Given Kennecott’s construction of section 552(a)(4)(B),
we think it clear that a court has no authority under FOIA to
issue an injunction mandating that an agency “make available
for public inspection” documents subject to the reading-room
provision—the third category of relief CREW seeks. 5 U.S.C.
§ 552(a)(2). Authorizing a court to order an agency to make
documents “available for public inspection” would reach
beyond section 552(a)(4)(B)’s focus on “relieving the injury
suffered by the individual complainant” to remedy an injury
suffered by “the general public”—a result our precedent
forecloses. Id. at 1203. That said, nothing in Kennecott
prevents a district court from, consistent with section
552(a)(4)(B), ordering an agency to provide to the plaintiff
documents covered by the reading-room provision.
The same analysis governs the fourth type of relief
CREW seeks: an order mandating that OLC “maintain and
make available for public inspection in an electronic format
current indexes providing identifying information as to any
matter . . . required by [section 552(a)(2)] to be made
available or published.” 5 U.S.C. § 552(a)(2) (emphasis
added). For just as a district court lacks authority to order an
agency to “make available for public inspection” documents
13
subject to the reading-room provision, it is without authority
to mandate than an agency make such an index available to
the public. 5 U.S.C. § 552(a)(2). We see no obstacle,
however, to a district court, in the appropriate case, and as an
extension of its broad equitable power to fashion FOIA relief,
ordering an agency to furnish such an index to a plaintiff.
Indeed, given that Kissinger described section 552(a)(2)’s
indexing requirement as one of FOIA’s “very limited record-
creating obligations,” Kissinger, 445 U.S. at 152 n.7
(emphasis added), directing an agency to turn over such an
index falls comfortably within the textual bounds of section
552(a)(4)(B)’s grant of authority to “enjoin the agency from
withholding agency records and to order the production of
agency records improperly withheld from the complainant.”
5 U.S.C. 552(a)(2) (emphasis added); see American
Immigration Lawyers Association v. Executive Office for
Immigration Review, 830 F.3d 667, 678 (D.C. Cir. 2016)
(noting that FOIA itself “provides no definition of the term
‘record.’”).
Public Citizen resists these conclusions and urges us to
read Kennecott narrowly, as leaving a court’s authority to
fashion a remedy for a violation of section 552(a)(2)
unconstrained. It points out that Kennecott considered a
violation of section 552(a)(1), not section 552(a)(2)’s reading-
room requirement. But essential to Kennecott’s holding is its
interpretation of the scope of section 552(a)(4)(B), FOIA’s
remedial provision, at issue here. Public Citizen also argues
that Kennecott “focused on the second clause of [section]
552(a)(4)(B), allowing ‘district courts to order the production
of any agency records improperly withheld from the
complainant,’ and did not examine the scope of the court’s
authority under the first clause, which gives courts the power
‘to enjoin the agency from withholding any records,’ without
any limitations.” Amicus Br. 19. The Kennecott court,
14
however, did not so cabin its holding; rather it construed the
scope of section 552(a)(4)(B) as a whole. See e.g., 88 F.3d at
1203 (“We think it significant . . . that [section]
552(a)(4)(B) is aimed at relieving the injury suffered by the
individual complainant, not by the general public.”).
Moreover, in arriving at its holding, the Kennecott court
necessarily—albeit implicitly—rejected this argument, and
we are bound “not only [by] the result” of a prior opinion “but
also [by] those portions of the opinion necessary to that
result.” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67
(1996). And given that the parties in Kennecott raised the very
textual argument advanced by Public Citizen, we are hardly
free to avoid the otherwise binding nature of our precedent on
the grounds that the question was one that “merely lurk[ed] in
the record, neither brought to the attention of the court nor
ruled upon,” LaShawn A. v. Barry, 87 F.3d 1389, 1395 n.7
(D.C. Cir. 1996) (en banc); see Joint Reply Br. Kennecott
Utah Copper Corp. and Industry and Sanitation District
Petitioners at 13, Kennecott, 88 F.3d 1191 (No. 93-1700).
To sum up, then, CREW may, in a FOIA suit to enforce
section 552(a)(2), seek an injunction that would (1) apply
prospectively, and would (2) impose an affirmative obligation
to disclose upon OLC, but that would (3) require disclosure of
documents and indices only to CREW, not disclosure to the
public. Having concluded that FOIA makes available all the
relief sought by CREW except disclosure to the public, we
now consider whether FOIA constitutes an “adequate
remedy” preclusive of CREW’s APA claim despite this gap
between the relief sought and the relief FOIA affords. 5
U.S.C. § 704.
IV.
Section 704 reflects Congress’ judgment that “the general
grant of review in the APA” ought not “duplicate existing
procedures for review of agency action” or “provide
15
additional judicial remedies in situations where Congress has
provided special and adequate review procedures.” Bowen v.
Massachusetts, 487 U.S. 879, 903 (1988) (citation omitted).
Courts must, however, avoid lightly “constru[ing] [section
704] to defeat the [APA’s] central purpose of providing a
broad spectrum of judicial review of agency action.” Id.When considering whether an alternative remedy is
“adequate” and therefore preclusive of APA review, we look
for “clear and convincing evidence” of “legislative intent” to
create a special, alternative remedy and thereby bar APA
review. Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009)
(quoting El Rio Santa Cruz Neighborhood Health Center v.
HHS, 396 F.3d 1265, 1270 (D.C. Cir. 2005)). Our cases have
identified that intent—or its absence—through several means.
For example, where Congress has provided “an independent
cause of action or an alternative review procedure” in a
purported alternative, we have found clear markers of
legislative intent to preclude. El Rio, 396 F.3d at 1270. An
alternative that provides for de novo district-court review of
the challenged agency action offers further evidence of
Congress’ will, given the frequent “incompat[ibility]”
between de novo review and the APA’s deferential standards.
Environmental Defense Fund v. Reilly, 909 F.2d 1497, 1506
(D.C. Cir. 1990); El Rio, 396 F.3d at 1270 (“[W]here a statute
affords an opportunity for de novo district-court review, the
court has held that APA review was precluded because
‘Congress did not intend to permit a litigant challenging an
administrative denial . . . to utilize simultaneously both [the
review provision] and the APA.” (quoting Environmental
Defense Fund, 909 F.2d at 1501 (alteration in original))). That
said, if the very existence of an alternative remedy is
“doubtful,” Bowen, 487 U.S. at 905, or “uncertain[],” El Rio,
396 F.3d at 1274, there is scant basis to displace APA review.
16
Because section 704 requires only an adequate
alternative, “this court has held that the alternative remedy
need not provide relief identical to relief under the APA” in
order to have preclusive effect. Garcia, 563 F.3d at 522(emphasis added); see El Rio, 396 F.3d at 1272 (explaining
that an alternative remedy need offer only relief of “the same
genre” to “preclude APA review.” (citation omitted)). Still, in
determining whether alternative remedies suffice to preclude
APA review, courts have “independently examined the[ir]
adequacy.” Women’s Equity Action League v. Cavazos, 906
F.2d 742, 751 (D.C. Cir. 1990). In Bowen, for instance, the
Court rejected as inadequate and non-preclusive the
alternative remedy of bringing a claim for “monetary
relief . . . in the Claims Court under the Tucker Act.” 487 U.S.
at 904. “The Claims Court,” the Supreme Court observed,
“does not have the general equitable powers of a district court
to grant prospective relief” and the Court was “not willing to
assume, categorically, that a naked money judgment against
the United States will always be an adequate substitute for
prospective relief.” Id. at 905. In Garcia, conversely, we
affirmed the dismissal of an APA claim in part because the
alternative remedy offered “declaratory and injunctive relief
against the agency, in addition to money damages”—relief we
deemed “[i]f anything” superior to that available under the
APA. 563 F.3d at 525.
By these lights, we have little doubt that FOIA offers an
“adequate remedy” within the meaning of section 704, as it
exhibits all of the indicators we have found to signify
Congressional intent. FOIA contains an express private right
of action and provides that review in such cases shall be “de
novo.” 5 U.S.C. § 552(a)(4)(B). As opposed to the “uncertain”
and “doubtful” remedies we have rejected as insufficient to
preclude APA review, our precedent establishes that a
plaintiff in CREW’s position may bring a FOIA claim to
17
enforce the reading-room provision. Irons, 465 F.2d at 614.
Indeed, in FOIA Congress established “a carefully balanced
scheme of public rights and agency obligations designed to
foster greater access to agency records than existed prior to its
enactment.” Kissinger, 445 U.S. at 150. The creation of both
agency obligations and a mechanism for judicial enforcement
in the same legislation suggests that FOIA itself strikes the
balance between statutory duties and judicial enforcement that
Congress desired. Considered together, FOIA offers CREW
precisely the kind of “special and adequate review
procedure[]” that Congress immunized from “duplic[ative]”
APA review. Bowen, 487 U.S. at 903.
Moreover, as our earlier discussion of the relief available
under section 552(a)(4)(B) makes plain, we see no yawning
gap between the relief FOIA affords and the relief CREW
seeks under the APA. Put another way, this case differs
dramatically from Bowen, in which the Court rejected an
alternative remedy that offered only monetary relief as an
inadequate substitute for the “general equitable powers of a
district court.” 487 U.S. at 905. True, courts lack authority
under FOIA to order agencies to “make [records] available for
public inspection.” 5 U.S.C. § 552(a)(2). Significantly for our
purposes, however, CREW itself can gain access to all the
records it seeks.
Thus, despite some mismatch between the relief sought
and the relief available, FOIA offers an “adequate remedy”
within the meaning of section 704 such that CREW’s APA
claim is barred. 5 U.S.C § 704.
V.
Three parting thoughts.
18
First, given the many indicia of Congressional intent that
counsel in favor of our conclusion today, no one should
understand our decision as “assum[ing], categorically,”—i.e.,
outside the FOIA context—that an alternative remedy will
preclude APA relief even if that alternative circumscribes
courts’ authority to order appropriate injunctive relief. See
Bowen, 487 U.S. at 905.
Second, our determination that FOIA is the proper
vehicle for CREW’s claim is entirely distinct from the
question whether CREW is entitled to relief. That merits
question—whether the reading-room provision commands
disclosure of any OLC opinions—awaits a different day and a
different case.
Finally, even if CREW prevails on the merits, our
conclusion that certain relief is available under FOIA says
nothing about its propriety in an individual case. Indeed, we
expect that only a rare instance of agency delinquency in
meeting its duties under the reading-room provision will
warrant a prospective injunction with an affirmative duty to
disclose subject records to a plaintiff. See Payne, 837 F.2d at494–95.
For the foregoing reasons, we affirm the district court’s
dismissal of the case.
So ordered.