[00:00:02] Speaker 00: Case number 16-5110, Citizens for Responsibility in Ethics in Washington Appellant versus United States Department of Justice at L. Mr. Morrison for the appellant, Mr. Tenney for the appellee. [00:00:33] Speaker 02: The question presented in this case is whether the uncertain remedy under the Freedom of Information Act constitutes an adequate alternative remedy with a relief that plaintiffs seek in this case. [00:00:48] Speaker 02: I want to be clear about what plaintiffs are seeking in this case. [00:00:52] Speaker 02: They are seeking an injunction against the defendants to require the defendants to carry out their affirmative obligation under Section 552A2 to publish on a regular basis all of the controlling opinions by the Office of Legal Counsel and, in addition, to provide an index for the public for those opinions. [00:01:15] Speaker 02: The government's position is very simple. [00:01:19] Speaker 02: It says that plaintiffs cannot get this relief under either the Freedom of Information Act or under the Administrative Procedure Act under which this case has been brought. [00:01:29] Speaker 02: The government says that the only remedy that we have is to make a record by record request for [00:01:37] Speaker 02: opinions of OLC. [00:01:39] Speaker 02: If they are granted, fine. [00:01:41] Speaker 02: If they're denied, we go to the district court, and we must do this on a one-by-one basis, and we can never get the injunction we want under either FOIA or under the Administrative Procedure Act. [00:01:53] Speaker 02: That is not an adequate alternative remedy under Section 704 of the APA. [00:02:00] Speaker 01: You seem, your brief suggests you agree that that's the appropriate FOIA remedy and you argue it's inadequate, correct? [00:02:10] Speaker 02: Your Honor, let me be clear about this. [00:02:12] Speaker 02: We don't think that FOIA is the right answer. [00:02:15] Speaker 02: But under this court's decision and under Bowen, as long as the remedy under the alternative here, FOIA, is doubtful or uncertain, then the APA is not precluded. [00:02:26] Speaker 01: Well, let me ask you about two things about the case. [00:02:30] Speaker 01: The amicus brief here and the district court in a part of the opinion that wasn't critical to his decision [00:02:39] Speaker 01: They both suggest that injunctive relief would be available under FOIA, and they point to the first clause of 552A3DB, which says, on complaint, the district court has jurisdiction to join the agency from withholding agency records and to order the production. [00:03:04] Speaker 01: So their argument is that the first clause of that section gives the district court full injunctive relief. [00:03:14] Speaker 01: And that seems to be supported by our decisions in both Payne and Irons and certainly by the Supreme Court's Decision and Renegotiation Board. [00:03:26] Speaker 01: That's the amicus argument. [00:03:29] Speaker 01: Yes you are. [00:03:31] Speaker 02: I want to be clear, I don't disagree with that argument as far as it goes, which is in situations like pain or others where the government has been [00:03:41] Speaker 02: giving documents that has been sued, gives up documents. [00:03:46] Speaker 02: It then has to be sued again and again. [00:03:48] Speaker 02: And finally, at this point, the court has authority under what I would refer to as their Ancillary Relief Equity Cleanup Doctrine to order them to stop withholding documents. [00:04:00] Speaker 02: But in this case, we are asking for affirmative relief. [00:04:04] Speaker 01: OK, but there's nothing in the statute, there's nothing in the first part of this statute that [00:04:11] Speaker 01: where it says the district court has jurisdiction to enjoin the agency from withholding agency records. [00:04:20] Speaker 01: There's nothing in there that suggests that that's limited to situations where [00:04:26] Speaker 01: You know, where the agency, as in pain, for example, has a history of refusing to comply, you file the FOIA, you know, right? [00:04:37] Speaker 01: It doesn't say that. [00:04:38] Speaker 01: It says, and renegotiation board is pretty powerful, right? [00:04:41] Speaker 01: It says in there that there's nothing in the statute that suggests any weakening of a district court's traditional equitable powers. [00:04:50] Speaker 01: I know I'm asking you questions that are, [00:04:55] Speaker 01: If you win on this, you have a clean FOIA case, right? [00:04:57] Speaker 01: You just don't have an APA case, correct? [00:05:00] Speaker 01: But I'm actually, is there anything wrong with their argument about the stat? [00:05:04] Speaker 01: Is there something about the statute here that led you to think that maybe they're wrong about that and that APA is your only adequate remedy? [00:05:13] Speaker 02: Well, I would say two things about that, Your Honor. [00:05:15] Speaker 02: First, the term withholding suggests to me, and certainly we've got a problem because the government insists on this, that withholding applies only to existing documents. [00:05:26] Speaker 02: Our relief, which we are seeking, would ask the judge to order that new OLC opinions on an ongoing basis be published without a future request. [00:05:38] Speaker 02: Maybe that's withholding, but maybe it's not. [00:05:41] Speaker 01: The second point is... Doesn't iron support that relief? [00:05:45] Speaker 02: Well, it does in a way, Your Honor, but of course, the government didn't contest that obligation. [00:05:51] Speaker 02: That was not an issue with irons. [00:05:53] Speaker 01: That's a good point. [00:05:54] Speaker 02: And it comes after this Court's decision, Kennecott-Copper, which suggests a narrow reading of the relief provisions under FOIA. [00:06:02] Speaker 06: That's your real problem, right? [00:06:04] Speaker 06: Kennecott. [00:06:05] Speaker 06: I mean, if we held there that under A1, which requires regulations to be published in the Federal Register, [00:06:15] Speaker 06: the FOIA injunctive relief remedy does not include an injunction requiring publication in the Federal Register. [00:06:27] Speaker 06: How in the world, if we follow Kennecott, do we order the relief under FOIA that you're asking for here? [00:06:35] Speaker 02: Well, I think that's a very good question, Your Honor, and I would suggest that the government needs to respond to that. [00:06:40] Speaker 02: We suggested a distinction, that publication in the Federal Register may be different from publishing under A2. [00:06:48] Speaker 04: Well, at some point, there's a question that the parties have scored below, but that hasn't really been reported on our level, is whether these OLC opinions are covered by A2 at all. [00:07:02] Speaker 02: Yes, that's a merits question, Your Honor, and we're happy to brief that. [00:07:07] Speaker 02: We tried to brief that in district court. [00:07:08] Speaker 02: The district court said we lost on this jurisdiction argument. [00:07:12] Speaker 02: But if I may return to Judge Tatel's question, the other aspect that we think is doubtful or uncertain or probably even less so and doesn't fall within the withholding is under A2, [00:07:24] Speaker 02: We are entitled, and the public is entitled, to an index of all the documents that come under A2. [00:07:31] Speaker 02: That is not a withholding. [00:07:33] Speaker 02: That would require them to create an index to the extent that they don't have one already, and in any event, to make that public. [00:07:40] Speaker 02: We don't think that the publication of an index is consistent with withholding. [00:07:46] Speaker 02: May I say this, Your Honor? [00:07:47] Speaker 02: We're in a little awkward position. [00:07:48] Speaker 02: We are happy to be told that you can get all the relief you want under FOIA. [00:07:53] Speaker 02: What we're not happy to be told is what the government's position is, which you can't ever get the relief under the APA or FOIA, regardless of, Your Honor's view on the substantive merits of our claim. [00:08:03] Speaker 02: The government says, this is an adequate remedy, but you can't have it. [00:08:07] Speaker 02: I don't understand, and this Court's opinions do not support that conclusion. [00:08:12] Speaker 02: Indeed, Bowen says three times, [00:08:14] Speaker 02: that the question is whether this remedy duplicates the remedy we're seeking here under the APA, duplicates something we can get under FOIA. [00:08:21] Speaker 02: If we can't get it under FOIA, how can that possibly be duplication? [00:08:26] Speaker 02: And so we're happy to, whatever the answer is, Your Honor, we think and we consider this. [00:08:33] Speaker 06: Is that really the proper articulation of the test, which is that under Boeing, that under 704, unless the remedy is equivalent or complete or perfect, [00:08:54] Speaker 06: You have a 704 claim. [00:08:56] Speaker 06: I mean, the statutory language is adequate. [00:08:58] Speaker 02: Adequate. [00:08:59] Speaker 02: And this court has said after Bowen that if it's uncertain or doubtful, and we think it fits both of those, that at least the government's position is incorrect and that [00:09:12] Speaker 02: We think Bowen states the proposition that in general, 704 is an exception to the broad grant of jurisdiction to the APA, and that unless the other remedy is adequate, we're entitled to proceed on the merits. [00:09:29] Speaker 01: Let me go beyond the just procedural question that's before us right now. [00:09:33] Speaker 01: I'm curious about what exactly you're looking for in the end here. [00:09:39] Speaker 01: Under the standards for releasing opinions, that's Joint Appendix 42, this Barron memo, [00:09:48] Speaker 01: I gather what OLC does is it releases opinions that they think are significant, correct? [00:09:54] Speaker 01: That's what they do. [00:09:55] Speaker 01: And you want all opinions that aren't privileged, right? [00:10:00] Speaker 02: That's correct, Your Honor. [00:10:01] Speaker 01: That's what you want. [00:10:02] Speaker 01: Do you have any sense of how many we're talking about? [00:10:06] Speaker 01: Do you know whether OLC – well, I could ask the government this – whether they issue on their website most – are they considering most of their decisions significant or most of them not? [00:10:17] Speaker 01: Do you have any idea? [00:10:18] Speaker 02: I do not know, Your Honor, we have no evidence in the record. [00:10:21] Speaker 02: My impression is that they issue some, but it's by no means all or most, but you could ask the government that. [00:10:31] Speaker 02: And we're principally focusing on the ones that the best practices memo describes as controlling, and we think that that's surely a [00:10:40] Speaker 02: a smaller subset that's also referred to as formal opinions, and maybe some other ones as well. [00:10:47] Speaker 02: But that's a matter for the merits. [00:10:49] Speaker 02: I see my time is up. [00:10:51] Speaker 02: Thank you. [00:10:51] Speaker 06: Could you answer the question, I guess, the district court and the government here take the view that, look, under FOIA, there's de novo review, [00:11:07] Speaker 06: And it's of the same genre. [00:11:09] Speaker 06: It's equitable relief that you can get. [00:11:11] Speaker 06: And even if it's not the prospective broad injunction, it's effective relief. [00:11:24] Speaker 06: What's wrong under our case law with that view as being adequate? [00:11:31] Speaker 02: Well, I'm glad Your Honor mentioned the word effective, because I think that's an important aspect of this. [00:11:37] Speaker 02: And that is, under the government's view, we have to make a document-by-document request. [00:11:42] Speaker 02: As this Court is well aware, the government has a lot of time to respond, and we have to litigate every one of these cases. [00:11:49] Speaker 02: We've noted it. [00:11:50] Speaker 02: Yes, I thought Your Honor had. [00:11:53] Speaker 02: That's quite different from being able to go to their website [00:11:56] Speaker 02: and identify a particular record, and if it's there, we can get it right away, and if not, we can request it. [00:12:02] Speaker 04: The particularized harm that gives you standing is not getting the information. [00:12:08] Speaker 04: As far as the not being on the website, that's what the generalized harm is not sufficient to stand for. [00:12:15] Speaker 02: Well, I think it's general – it is – that question, of course, is a question relating to the contents of the obligation. [00:12:24] Speaker 02: And we think that although in general – No, no, no, no. [00:12:27] Speaker 04: If the government can have an obligation, then nobody will have a standing to sue them. [00:12:31] Speaker 04: Well, I think – It's not just the obligation. [00:12:34] Speaker 04: The question here becomes the standing. [00:12:36] Speaker 04: And the standing – your standing, as I understand it, is based on the individualized [00:12:46] Speaker 02: Well, the individual harm is that we, the crew asserts that it uses OLC opinions as part of its ongoing mission. [00:12:55] Speaker 02: It made this allegation as a complaint. [00:12:57] Speaker 04: The government... No, that's the basis out of which you might be harmed. [00:13:00] Speaker 02: Yes, yes. [00:13:01] Speaker 04: The harm is what? [00:13:03] Speaker 04: that you can't get the information. [00:13:04] Speaker 02: Yes, on an easy and regular basis to conduct our business. [00:13:08] Speaker 02: The government did not raise standing in this case, and so... Well, that's jurisdictional. [00:13:13] Speaker 02: It is jurisdictional. [00:13:14] Speaker 02: It's a win for them not raising. [00:13:16] Speaker 06: I believe that our complaint more than adequately alleges it to the court, which is further we're glad to... But I guess to follow up on my earlier question, let's suppose you do have to sue individually. [00:13:30] Speaker 06: And after the third such suit, you prevail three times. [00:13:36] Speaker 06: There's an OLC opinion that was improperly withheld, and you got a court order requiring them to turn it over. [00:13:46] Speaker 06: After the third one, can't you, under pain or the other cases, then get your injunction? [00:13:52] Speaker 06: Because you can say, look, they keep doing this. [00:13:56] Speaker 06: They obviously aren't complying with the legal standards for what they have to make available for public inspection. [00:14:03] Speaker 06: So give us our injunction. [00:14:06] Speaker 06: I mean, it may take you longer. [00:14:08] Speaker 06: I know you don't want to have to do that. [00:14:10] Speaker 06: But why isn't that adequate? [00:14:14] Speaker 02: Well, I suppose that gets to the question of being the words adequate under 704. [00:14:20] Speaker 02: And we don't think having to make repeated requests of the same agency, this is not a case like Women's Equity Action League in which the remedy was considered to be adequate because you couldn't sue the government for everything that you had to sue private institutions for. [00:14:37] Speaker 02: I know of no case in which you have to repeatedly sue the government and it's continued to be adequate. [00:14:42] Speaker 02: Moreover, [00:14:44] Speaker 04: It's not clear to me that the government would comply. [00:14:50] Speaker 02: Yes, I would certainly say that, Your Honor. [00:14:52] Speaker 02: In addition, we can't get the index. [00:14:53] Speaker 02: What case would that be? [00:14:58] Speaker 04: You say you knew of no decisions that said [00:15:06] Speaker 04: because of having to continue to sue the government. [00:15:09] Speaker 02: Do you say yes? [00:15:10] Speaker 02: I'm asking you what case that is. [00:15:12] Speaker 02: I would say United States against the Department of Justice, in which the government was not releasing its district court opinions on a regular basis, and the Supreme Court said that they had to release them on a regular basis. [00:15:22] Speaker 02: I would say that the tax analysts and advocates for this court's decision, where the technical advice memorandum were not being regularly released, the court had to do it. [00:15:32] Speaker 02: But I would have to say, Your Honor, I know of no case in which they, and Judge Wilkins is [00:15:36] Speaker 02: phrase, we went to court three times and had to sue them every time, in which this court has said that that's not adequate. [00:15:44] Speaker 02: The course of difficulty is that we would continue to get disputes with the Justice Department as to whether the three [00:15:52] Speaker 02: cases that we won were representative of all the OLC opinions that they have. [00:15:57] Speaker 02: We recognize that there's a variety of OLC opinions, some of which the formal opinions are presidential controlling. [00:16:04] Speaker 02: Others, which may not be formal, may be equally presidential. [00:16:08] Speaker 02: And my fear is that unless we get some kind of a broad standard that tells the department what it has to do on a continuing basis, we will be continually back in court and back before this court on a regular basis. [00:16:20] Speaker 01: So let me make sure I have exactly what your argument is in the APA side of this. [00:16:27] Speaker 01: Your argument is that as long as the FOIA remedy is uncertain, then under the APA, it's inadequate. [00:16:36] Speaker 01: And it's uncertain in your view because the statute uses or withhold and because of our decision in Kanekot. [00:16:43] Speaker 01: Is that basically it? [00:16:45] Speaker 02: Also, the government's continuing position on this says that it's uncertain. [00:16:50] Speaker 02: We think, in a way, we ought to be entitled at the beginning of the case to know whether we can sue or not. [00:16:56] Speaker 02: And we knew what the government's position was very soon. [00:16:59] Speaker 02: And after the case got started, we actually, when we filed the case, we thought that the government would engage us on the merits. [00:17:04] Speaker 02: We'd have the kind of merits-based discussion we expected to have. [00:17:06] Speaker 06: That's one thing I don't understand here, is why you just didn't plead the alternative. [00:17:17] Speaker 02: We initially thought that the APA remedy was the correct remedy. [00:17:22] Speaker 02: We came into court, and the district judge said to us, we had mentioned FOIA in our original complaint. [00:17:30] Speaker 02: District judge said it was uncertain what we were suing under the APA or FOIA. [00:17:34] Speaker 02: The government, meanwhile, had come in and said to us, not only couldn't we use FOIA, but we had to make a document by document request. [00:17:41] Speaker 02: And since we hadn't made a document request at all, we couldn't sue under the government's position. [00:17:46] Speaker 02: Rather than getting tangled in what we hoped to avoid, which was a long procedural argument, we did what Judge Sullivan said and we played it straight forward. [00:17:55] Speaker 02: This is an APA case because we thought it was better. [00:17:58] Speaker 02: I might say, Your Honor, this is not a case where we're trying to get an advantage in suing under the APA. [00:18:03] Speaker 02: There are advantages under FOIA. [00:18:05] Speaker 02: We get attorney's fees, we get a de novo review, shorter time to answer, we get a VAW index. [00:18:10] Speaker 02: We may not get most of these things under the APA. [00:18:13] Speaker 02: So we're not trying to get any advantage in suing under the APA. [00:18:16] Speaker 02: We did what we thought the case law suggested we should do, and it was the straightforward way of getting the kind of affirmative relief that we think that A2 permits us to get, and which the government says we can't get under either branch of this case. [00:18:31] Speaker 01: Okay, thank you. [00:18:32] Speaker 02: Thank you, Your Honor. [00:18:39] Speaker 03: May it please the court, counsel focused on uncertainties about the FOIA remedy, but I want to just focus on what is undisputed about the FOIA remedy. [00:18:48] Speaker 03: If they think that there are documents or categories of documents that they can reasonably describe that OLC has not made available to them, but which should be made available to them, they can file a request with OLC or with the Department of Justice. [00:19:04] Speaker 03: And if they're not satisfied with the response, they can go to court under FOIA and claim that the response was inadequate, either in not responding or in not producing records that should have been produced. [00:19:16] Speaker 03: And then they can litigate about that. [00:19:17] Speaker 01: Could they ask for all documents that OLC has decided not to put on its website? [00:19:28] Speaker 03: I don't know that they could ask for literally all documents. [00:19:32] Speaker 03: I mean if they describe, for example, [00:19:36] Speaker 01: No, no, no, all opinions, because they want everything public because they do research on it. [00:19:40] Speaker 01: So could they just say, we want on the website every opinion that the agency has determined in its process that is not significant? [00:19:53] Speaker 03: That's the word, right? [00:19:54] Speaker 03: Essentially, yes. [00:19:55] Speaker 03: They could do that? [00:19:55] Speaker 03: I'll put one caveat on that. [00:19:57] Speaker 03: But I mean, just to be concrete about it, [00:20:00] Speaker 03: I mean, there have been requests over the years for all memoranda opinions that were not placed on OLC's website, and those requests have been processed. [00:20:11] Speaker 03: Now, OLC believes most of those are privileged, and then you could litigate about that. [00:20:17] Speaker 03: The way that they're describing what they think is a controlling opinion is a little bit uncertain and shifting, and so there might be things to be worked out about exactly what they mean. [00:20:27] Speaker 03: But in concept, yes, you could make such a request that people have, and then if you don't like the answer, you can litigate about it. [00:20:48] Speaker 04: No, we are not, Your Honor. [00:20:52] Speaker 03: No, the point that I'm making is a procedural one. [00:20:56] Speaker 03: It's that if they want to raise the arguments they're raising now, they can raise them. [00:21:10] Speaker 03: We don't believe the opinions that OLC generates are covered by that section. [00:21:16] Speaker 03: And so the only point that I'm making, because we're here on a procedural point, Your Honor, is the point that I'm making is simply... If they're covered at all, then they would be. [00:21:39] Speaker 03: Right, Your Honor. [00:21:40] Speaker 03: And we think, actually, that most of the times when there are releases under the FOIA, and this is discussed in the response that they got to their letter here, most of the time when there are releases, they're discretionary releases. [00:21:55] Speaker 03: And the executive branch waives privileges rather than that we conclude that the documents are privileged. [00:22:00] Speaker 03: But the only question here, and this is why I started with this, is the question is whether they have a forum in which they can litigate [00:22:07] Speaker 03: an adequate remedy in the court. [00:22:09] Speaker 03: And what they're saying is, OLC has some documents that we're entitled to, and there's no question that if they think that, they can ask for the documents, reasonably describe them, and then if OLC doesn't produce them, they can file a lawsuit, and then they can litigate about it. [00:22:26] Speaker 03: And if you compare this case to cases like Count 11 for the Blind and Women's Equity Action Week, [00:22:33] Speaker 03: I mean, this case is actually the remedy. [00:22:35] Speaker 03: It's much more clear that the remedy here is adequate because in those cases what happened was the government had an oversight role and was supposed to make sure that other entities to which the government was giving funding were not discriminating. [00:22:46] Speaker 03: And they said the government is falling down on the job and not carrying out that mandate. [00:22:51] Speaker 03: And so they wanted to sue the government and say, no, you have to make sure that these federal funds aren't being used in this impermissible manner. [00:22:56] Speaker 03: And the court said, [00:22:57] Speaker 03: Well, it's an adequate remedy. [00:22:59] Speaker 03: Every time some recipient of the funds discriminates, you can file a lawsuit against them. [00:23:04] Speaker 03: That's an adequate remedy. [00:23:06] Speaker 03: And here, it's much closer. [00:23:09] Speaker 03: They're saying, simply, if there are documents, you're suing the very people who you think are doing the wrong thing, in this case, OLC, as opposed to there, where you thought the government wasn't monitoring well enough, and you had no remedies at all against them. [00:23:22] Speaker 03: And they say there have to be a document by document request. [00:23:25] Speaker 03: Obviously, you can have [00:23:26] Speaker 03: requests for categories of documents. [00:23:28] Speaker 03: You don't have to file a new lawsuit for each one. [00:23:30] Speaker 01: But even so, even if it's limited to document by document or groups of documents, if the FOIA remedy does not include the possibility of injunctive relief, how do you square that with the Supreme Court's decision in Bowen or our decision in Garcia, where we say, you know, it was adequate because there was injunctive relief? [00:23:53] Speaker 01: It isn't, according to your theory, government's theory. [00:23:58] Speaker 03: Well, I mean, the question is about prospective, affirmative injunctive relief. [00:24:04] Speaker 01: I.e. [00:24:04] Speaker 01: injunctions, right? [00:24:07] Speaker 03: Sure. [00:24:07] Speaker 03: I mean, an injunction could be in order to turn over a document, but I guess the point... [00:24:13] Speaker 06: That's a little injunction. [00:24:14] Speaker 06: They want a big injunction. [00:24:17] Speaker 03: That's right, Your Honor. [00:24:18] Speaker 03: And that's what they wanted in Council 11 for the Blind. [00:24:21] Speaker 03: And that's what they wanted in Women's Equity Action League. [00:24:23] Speaker 03: And in Bowen, what the Supreme Court held, there was no specific remedy for the claim about Medicaid that they were bringing. [00:24:34] Speaker 03: What they were saying was that the claims court was an adequate remedy. [00:24:38] Speaker 03: And the court said, it's not even clear you could get a remedy from the claims court. [00:24:43] Speaker 03: You know, we don't think that that displaces the remedy that would be available under the APA for administrative action. [00:24:50] Speaker 03: In Garcia, this court said that there was an adequate remedy. [00:24:53] Speaker 03: And specifically, what was that issue in Garcia was they said USDA isn't taking action on complaints. [00:25:00] Speaker 03: And nobody said you could get [00:25:02] Speaker 03: an injunction that would require the USDA to process the complaints better. [00:25:07] Speaker 03: What they said, the remedy that was adequate was that you could get your actual claim of discrimination itself redressed. [00:25:14] Speaker 03: And it's like Women's Equity Action League and Coker v. Sullivan and Council of and for the Blind. [00:25:20] Speaker 03: The thing that's difficult to reconcile is plaintiff's position with Council of and for the Blind because they wanted [00:25:28] Speaker 03: what was characterized here as a big injunction. [00:25:31] Speaker 03: They wanted to say the government has to do more oversight. [00:25:34] Speaker 03: In this revenue sharing program, the government needs to make sure that all of the recipients, they don't want to go recipient by recipient. [00:25:41] Speaker 03: And every time they see a problem sue somebody, they want to get the government out ahead of it. [00:25:46] Speaker 03: And there was no question they couldn't get that. [00:25:48] Speaker 03: This court said that the government wouldn't even be more than a nominal defendant. [00:25:51] Speaker 01: And it was an adequate remedy. [00:25:56] Speaker 01: I just want to make sure I understand the government's argument here, your position. [00:26:00] Speaker 01: So Amicus points out that 552A1 and 2, they're obligations that are imposed on the government by FOIA that are independent of a specific request. [00:26:11] Speaker 01: Yes. [00:26:12] Speaker 01: And the government's position is those are unenforceable, except through individual requests for documents. [00:26:20] Speaker 03: Well, they're not unenforceable, Your Honor. [00:26:22] Speaker 03: And this court discussed this in Kennecott. [00:26:24] Speaker 03: I mean, the primary means by which Congress wanted to make sure that the government was complying with those was by saying that if there were materials that should have been made available under A1 or A2, then the government wasn't entitled to rely on those. [00:26:39] Speaker 01: But the public has no, in other words, lawyers who say, let's say, for example, your client [00:26:46] Speaker 01: It's not OLC here, but let's just assume it's the NLRB. [00:26:52] Speaker 01: And let's assume the NLRB has just decided it's not going to publish its opinions. [00:26:58] Speaker 01: It's not going to make them public anymore, but only the significant ones. [00:27:03] Speaker 01: Now, there's lawyers all over the country who are practicing before the NLRD, and now they don't have that set of precedents. [00:27:10] Speaker 01: There's people at law schools who do research on this stuff. [00:27:13] Speaker 01: They don't have that. [00:27:14] Speaker 01: And to say, well, you can't use it against them doesn't help them, because nobody's threatening to use it against them. [00:27:21] Speaker 01: They want it so they can prepare for cases or they can write their law review articles. [00:27:25] Speaker 01: And from the government's point of view, that's all unenforceable, right? [00:27:28] Speaker 03: Well, there's no way to do that. [00:27:30] Speaker 03: Well, no, Your Honor, there's a few responses. [00:27:32] Speaker 03: First, the fact that the first group that you mentioned was lawyers who were practicing before the NLRB, and of course, if the NLRB intended to apply its precedents in cases, [00:27:45] Speaker 03: then it couldn't, as a practical matter, the NLRB wouldn't be well advised to withhold all of them and then be stopped from applying them in future cases because it hadn't made them public. [00:27:56] Speaker 01: No, but they just can't apply them against a person. [00:28:00] Speaker 03: Well, I mean, in each case there is a dispute between two people. [00:28:03] Speaker 03: And so they'd be likely to be applying them. [00:28:06] Speaker 01: But, dear, the bottom line is it's not enforceable through the courts, correct? [00:28:09] Speaker 03: Well, I mean, the other point, of course, is the one that I think was raised earlier, is if somebody makes a request for the materials, and I mean, this is obviously a far-fetched hypothetical that an agency like the NLRB would just entirely stop publishing its opinions. [00:28:25] Speaker 03: But if they have a case, right? [00:28:29] Speaker 04: But if they had this practice... Why was it hypothetical? [00:28:47] Speaker 03: If an agency were to do that, of course, a FOIA request could be made, and FOIA litigation could be begun. [00:28:56] Speaker 03: And as the district court pointed out in this case and other courts have pointed out, there are consequences for losing cases like that. [00:29:03] Speaker 03: And having lost a case like that, if an agency resisted a conclusion by this court that it had an obligation to publish these decisions or to make them available, we would be in an entirely different situation. [00:29:16] Speaker 03: that could be described as unenforceable through the courts. [00:29:19] Speaker 03: The point is simply that you can't come in ahead of time and say, I haven't made any FOIA requests. [00:29:26] Speaker 03: I haven't established any precedent that you actually do need to publish these things. [00:29:30] Speaker 03: And in fact, we suggest that the precedent on this point, Electronic Frontier Foundation, cuts in the exact opposite direction. [00:29:37] Speaker 03: And I just wanted to make one additional point, if I might, Your Honor. [00:29:40] Speaker 01: Sure. [00:29:40] Speaker 01: I have a couple more questions. [00:29:42] Speaker 03: Which is that, [00:29:43] Speaker 03: I mean, one reason that Congress would set it up this way is illustrated by this case. [00:29:49] Speaker 03: It's very difficult to understand what sort of injunction they contemplate is going to come about at the end of this litigation or what the category of documents that they want is. [00:29:58] Speaker 03: They say they want all the formal opinions. [00:30:01] Speaker 03: You couldn't issue an injunction – a district court couldn't issue an injunction saying publish all the formal opinions because that would cover the opinion that was at issue in Electronic Frontier Foundation. [00:30:09] Speaker 03: And they say they want discovery to figure out which opinions it is that they actually are entitled to. [00:30:16] Speaker 03: Our position is simple. [00:30:17] Speaker 03: We don't think they're entitled to any of them, but that's not going to be their position. [00:30:21] Speaker 03: And the point I'm making here is not to jump ahead to the merits because that's not before the court. [00:30:26] Speaker 03: The point that I'm making is that Congress appropriately concluded that [00:30:30] Speaker 03: if you want to bring a case and assert that there are documents or a reasonably describable category of documents that an agency needs to produce, that it makes sense to litigate that when there are actual concrete documents that you have requested that the agency has refused your request. [00:31:12] Speaker 03: Yes, you would have jurisdiction to do so. [00:31:15] Speaker 03: We haven't really briefed the question, and we think that the grounds on which the district court decided were correct, and we're urging the court to do that, but your honor is quite correct that that is available. [00:31:28] Speaker 03: I mean, we also have another point, which we've alluded to, which is related to the points I'm making about the APA, the need to identify a discrete action that the agency needs to take, which we don't think has been done here either. [00:31:43] Speaker 03: We've raised that, again, as a point about why it really doesn't make sense to have this as an APA claim. [00:31:48] Speaker 03: But there are other issues before the district court that we don't think you need to reach, because we think the district court got it right. [00:31:53] Speaker 04: I might be too far down my rabbit trail, but I do want to assert that it's not a whole rabbit trail. [00:31:58] Speaker 01: So just a couple of other questions. [00:32:02] Speaker 01: What is your view about the first part of 55552A3B, that the district court has jurisdiction to enjoin the agency from withholding agency records and to order their production? [00:32:22] Speaker 01: The amicus has argued that those are two separate provisions. [00:32:25] Speaker 01: And actually, Canakot didn't look at the first part of that statute. [00:32:30] Speaker 01: What do you think that means? [00:32:32] Speaker 03: It's not clear from the text that those are two different things, rather than that. [00:32:38] Speaker 03: It's always that two sides of the same coin stop withholding and order the production. [00:32:44] Speaker 01: Now, again, as you're saying now, because [00:32:47] Speaker 01: The first part is to enjoin, and it doesn't say anything about withheld, it doesn't say anything about a specific document. [00:32:56] Speaker 01: It does have the words withheld. [00:32:58] Speaker 01: And the second part says, enjoin the agency from with, the second part says, order production. [00:33:09] Speaker 01: I guess what I'm asking is, what does the first part of that sentence add to the statute? [00:33:17] Speaker 01: Now, if they can't issue a forward-looking injunction, doesn't order the production of any agency record improperly withheld do everything? [00:33:29] Speaker 01: That leaves the first part of the statute surplus. [00:33:32] Speaker 01: It doesn't do anything. [00:33:33] Speaker 03: Does it? [00:33:35] Speaker 03: Your Honor, it's possible or it's possible that obviously this court is held in pain. [00:33:43] Speaker 03: That was a circumstance that was much narrower than what plaintiffs are talking about here that would give meaning to that first part. [00:33:51] Speaker 01: Because in that case, there was a practice of withholding. [00:33:55] Speaker 01: Is that your point? [00:33:55] Speaker 03: Yes. [00:33:56] Speaker 03: And again, we think that this case is not a good one to decide issues about the scope of FOIA, particularly because the parties agree, and particularly because the district court concluded, quite rightly, that even if you just take the aspects of FOIA that are completely undisputed, that alone is an adequate remedy. [00:34:16] Speaker 03: It's clear, as Your Honor pointed out earlier, the Supreme Court has said that FOIA doesn't entirely eliminate equitable discretion of courts. [00:34:26] Speaker 03: And so we know that there are some injunctions. [00:34:28] Speaker 01: The renegotiation board said it doesn't eliminate it at all. [00:34:31] Speaker 03: Right. [00:34:32] Speaker 03: And I guess my point is, so we don't have a dispute about whether there is equitable relief. [00:34:38] Speaker 03: And the question would be, which are the appropriate cases in which that relief should be exercised? [00:34:43] Speaker 03: And we would submit that that issue should be decided in a case in which somebody is urging that equitable relief is appropriate under the FOIA. [00:34:50] Speaker 03: And the parties could join issue on that question. [00:34:52] Speaker 03: Here what's happened is they've disclaimed any effort to obtain relief under the FOIA. [00:34:57] Speaker 03: The district court properly concluded that [00:35:00] Speaker 03: there is no APA remedy in this case, and we would submit that that would be the proper ground on which to affirm that decision. [00:35:06] Speaker 06: But I guess that begs the question of, so what happens if if we issue a very hypothetically? [00:35:17] Speaker 06: If we were to affirm on the grounds that the district for the basically the same rationale that the district court did, so we don't really have to decide all the contours of the scope of FOIA, but it's just that it's an adequate remedy. [00:35:33] Speaker 06: And then. [00:35:33] Speaker 06: You know the case proceeds under FOIA. [00:35:39] Speaker 06: But perhaps. [00:35:41] Speaker 06: The remedy that's ordered and that's affirmed isn't really kind of what we thought it would be. [00:35:52] Speaker 06: We can't go back and revisit the 704 question later, can we? [00:35:56] Speaker 03: Correct, Your Honor, but I guess I'm not proposing that this court affirm the district court based on [00:36:03] Speaker 03: on presuming anything uncertain about what the FOIA remedy would be. [00:36:07] Speaker 03: I'm not saying this court should presume that there must be some injunction buried in here at the end of the day, because our point is simply that [00:36:15] Speaker 03: As was pointed out earlier, the injury that they're alleging that they've suffered is the deprivation of information. [00:36:23] Speaker 03: And there's no question that they can litigate about whether and attempt to address that injury through the part of FOIA that is just regularly applied by this court all the time, which is just they can make a request and they can try to get the documents. [00:36:39] Speaker 03: And this court wouldn't have to presume that they could do anything more than that under the FOIA for the FOIA to be an adequate remedy because the FOIA, you know, Congress set up the FOIA and the requesting system precisely for this purpose to say that if somebody thinks that they have an informational injury, they can [00:36:57] Speaker 03: they can seek documents and they can litigate about it. [00:37:00] Speaker 03: And so there's not going to be a surprise along those lines. [00:37:05] Speaker 03: Now, there are questions that could be posed about whether, in addition to that, there are injunctions in certain circumstances and what those circumstances would be. [00:37:14] Speaker 03: But I'm not asking this court to presume any answer to that question. [00:37:17] Speaker 03: And so there would be no need to revisit the 704 analysis. [00:37:19] Speaker 03: He would just say, either there is or there isn't more relief available under FOIA for a plaintiff who brought a claim. [00:37:25] Speaker 03: file the request and brought a claim under FOIA, which this plaintiff didn't. [00:37:29] Speaker 06: Well, do you think as a doctrinal matter that when we look at what 704 means under the APA, specifically with respect to the issue of what is an adequate remedy, that there's not one test that applies for [00:37:50] Speaker 06: Every statute that the test for, you know, in the Medicaid context might be different than the FOIA context. [00:37:58] Speaker 06: It might be different in some other context. [00:38:06] Speaker 06: Is the adequate remedy test always the same or is it context specific? [00:38:10] Speaker 03: Well, I don't think the test is different. [00:38:11] Speaker 03: The application is different in each context. [00:38:15] Speaker 03: And so, for example, I mean, to take Medicaid as an example, you know, in Bowen, the Supreme Court pointed out that there it was applying the test in a circumstance in which Congress had not provided a specific alternative remedy to the APA for the [00:38:31] Speaker 03: the kind of injury that was being asserted there. [00:38:34] Speaker 03: In the FOIA, conversely, there's no dispute that Congress has provided a specific alternative remedy. [00:38:41] Speaker 03: And then in El Rio, the issue before the court was whether there was an alternative remedy in the Federal Tort Claims Act, and the court analyzed it and concluded, no, Congress didn't mean for that to be the remedy, and that actually wouldn't necessarily provide a remedy. [00:38:54] Speaker 03: But here, [00:38:55] Speaker 03: I mean, the answer to these questions in this case is quite simple. [00:38:58] Speaker 03: There's no dispute that Congress provided a remedy for informational injuries of this type. [00:39:03] Speaker 03: There's no dispute that it's the FOIA. [00:39:04] Speaker 03: There's no dispute that if they think there are documents that OLC needs to turn over, that they can litigate about whether OLC needs to turn them over in the context of a FOIA suit. [00:39:15] Speaker 03: So this case is actually just quite easy under 704 as the district court recognized. [00:39:21] Speaker 04: Easy? [00:39:23] Speaker 03: Well, you wouldn't think the case is easy when you read the briefs, because both sides [00:39:40] Speaker 01: I mean, it's kind of in both sides. [00:39:42] Speaker 01: What we've got here is we've got two sets of really good briefs where the parties seem to agree that the FOIA remedy is limited to specific questions, but the parties dramatically disagree about the consequences of that. [00:39:56] Speaker 01: And then we also have a very effective amicus brief, which suggests that you're both wrong. [00:40:01] Speaker 01: So you may be easy, but I haven't yet gotten there. [00:40:05] Speaker 01: So let me ask you two other questions. [00:40:07] Speaker 01: You say that they could, under FOIA, file a request for a group of documents, right? [00:40:15] Speaker 01: Including, they could say, they could say all documents, all opinions that the agency has concluded are not significant, right? [00:40:23] Speaker 03: Could they do that? [00:40:25] Speaker 03: Again, I'm hesitant to say whether a particular request, often there's a back and forth to make sure everyone understands what they mean. [00:40:33] Speaker 03: I suspect that there are answers. [00:40:37] Speaker 03: All documents that are significant is going to be a huge number of documents. [00:40:42] Speaker 06: They define the universe of documents in their complaint. [00:40:45] Speaker 01: Yeah, right. [00:40:46] Speaker 01: And they use your own standard. [00:40:48] Speaker 01: They use the standard. [00:40:49] Speaker 01: It's a JA-42. [00:40:50] Speaker 01: They say, we want all decisions that the agency, through its process, and the agency has this process that takes place in the front office with consulting with other agencies about what decisions are significant and what aren't. [00:41:03] Speaker 01: We want all decisions published that are not significant. [00:41:07] Speaker 03: I think that would be okay. [00:41:11] Speaker 03: The question is what they mean by decisions. [00:41:13] Speaker 01: I mean opinions, just opinions. [00:41:15] Speaker 03: If you're talking about the formal memorandum of opinions, yes, I think they could. [00:41:19] Speaker 03: Somebody filed such a request and it was processed. [00:41:21] Speaker 01: It was? [00:41:22] Speaker 03: Years ago, it's not in the record, but just to be concrete about it. [00:41:27] Speaker 03: What happened? [00:41:27] Speaker 03: I mean, most of them, one of them was released, most of them were withheld as privileged. [00:41:33] Speaker 03: And then if that party was, that didn't go any further, but if that party, you know, was dissatisfied with that, they could litigate under FOIA. [00:41:39] Speaker 01: But that case didn't get litigated. [00:41:41] Speaker 03: Right. [00:41:41] Speaker 01: Okay. [00:41:42] Speaker 01: Second question is, how does that solve their index problem? [00:41:50] Speaker 01: That doesn't give them an index. [00:41:51] Speaker 01: The statute requires an index. [00:41:53] Speaker 03: Well, their index, first of all, their complaint doesn't say anything about the index, but just to answer your question directly, the point is, [00:42:05] Speaker 03: The index is that if there are documents that are covered by 552A2, then the agency needs to index them. [00:42:11] Speaker 03: And so the dispute here is about whether the documents are covered by 552A2 or not. [00:42:18] Speaker 01: So if they got an order saying insignificant documents are covered, [00:42:23] Speaker 01: then that would come with, coming with that would be the indexing requirement. [00:42:27] Speaker 03: Well, it's not, I mean, that would be a legal consequence of it. [00:42:30] Speaker 03: If the agency were told by this court, you know, these documents are 552-82 documents, then the indexing obligation would be triggered. [00:42:38] Speaker 01: I see, okay, last question. [00:42:40] Speaker 01: And now you went into the merits. [00:42:42] Speaker 01: I wasn't going to until you did. [00:42:44] Speaker 01: And you don't have to answer this question. [00:42:46] Speaker 01: I know you may not know the answer, but when I looked at the procedures that are J-42, my question was, [00:42:53] Speaker 01: Why is OLC doing this? [00:42:56] Speaker 01: Why make this distinction between significant and insignificant? [00:43:02] Speaker 01: Wouldn't it just be easier to put out everything that's not privileged? [00:43:07] Speaker 01: Well, what's the reason for that? [00:43:09] Speaker 01: And if you don't know, I understand. [00:43:11] Speaker 03: Well, I mean, just to be clear about the- It would be easier for the agency, wouldn't it? [00:43:15] Speaker 03: Well, but you say everything that's not privileged. [00:43:17] Speaker 03: I mean, it basically all is privileged. [00:43:20] Speaker 03: And so the question is really about whether to waive privileges. [00:43:22] Speaker 03: Because we're talking about legal advice here. [00:43:25] Speaker 03: And that's what was discussed in the electronic frontier. [00:43:28] Speaker 04: No, but by definition, we're not ever waiving privilege. [00:43:31] Speaker 04: And not by any of them now. [00:43:32] Speaker 01: By definition, we're talking about unprivileged documents. [00:43:35] Speaker 01: Now, if they're all privileged, maybe kind of someday we'll get their quote reading room and it'll be empty, correct? [00:43:41] Speaker 01: But there's nothing in it. [00:43:42] Speaker 01: But the fact is that there have to be unprivileged documents. [00:43:48] Speaker 01: Otherwise, OLC wouldn't be publishing its significant decisions, right? [00:43:53] Speaker 03: No, Your Honor. [00:43:55] Speaker 03: What happens is, OLC determines which ones are significant, and then if they're significant, then there's a process by which they determine whether release of the document, though technically privileged, whether release of the document would actually harm the interests of the executive branch or the affected agencies, and then they determine whether to waive the privilege or not. [00:44:16] Speaker 03: I see, I see. [00:44:17] Speaker 04: I would have about that if it doesn't the privilege belong to the [00:44:21] Speaker 04: If it's a privilege document, privilege belongs to the client agency rather than to the OLC. [00:44:28] Speaker 03: Your Honor, that's a complicated question about who exactly the client is in this context, but as a practical... If it's a privilege document, then there has to be a client agency, doesn't there? [00:44:38] Speaker 03: Well, I mean, we use colloquially the term client agency. [00:44:41] Speaker 03: The client is the United States. [00:44:42] Speaker 03: But as a practical matter, Your Honor, the way this is resolved is that they consult all of the affected agencies. [00:44:48] Speaker 03: And in practice, if affected agencies object to the disclosure, then it's extremely unlikely that it would be discretionary disclosure. [00:44:55] Speaker 04: That would be consistent then with the idea that the privilege belongs to the client agency, not to the DEF and the OLC. [00:45:02] Speaker 03: They would be acting consistent with that. [00:45:04] Speaker 03: I'm not sure as a technical matter whether that's correct or not. [00:45:06] Speaker 03: That's a little beyond what I know here. [00:45:08] Speaker 06: But in any case, wouldn't a Vaughn index be created and produced to the plaintiff? [00:45:17] Speaker 03: If there were litigation, I assume is the premise of that question. [00:45:21] Speaker 06: Yeah, if there were litigation. [00:45:22] Speaker 03: Yes. [00:45:22] Speaker 03: I mean, obviously, there could be circumstances about the completeness of it. [00:45:27] Speaker 03: But yes, one would expect a Vaughn index. [00:45:31] Speaker 06: And doesn't that go to the adequacy issue? [00:45:36] Speaker 06: I mean, getting the Vaughn index at least notifies the plaintiffs of the universe of documents that are out there. [00:45:51] Speaker 06: They can't see them, but they [00:45:53] Speaker 06: but they learn the identity or something about the identity of them. [00:45:58] Speaker 03: Potentially, again, we are well beyond this case. [00:46:01] Speaker 03: Obviously, depending on the nature of the advice, sometimes the subject matter is itself privileged. [00:46:05] Speaker 03: And so there might be disputes about the adequacy of the bond index, too. [00:46:09] Speaker 03: But if the question is whether plaintiffs could litigate that they aren't getting enough information, either by not getting an adequate index or by not getting the documents themselves in a FOIA suit, then the answer clearly is yes. [00:46:23] Speaker 01: Anything else? [00:46:24] Speaker 01: No. [00:46:24] Speaker 01: Okay, thank you. [00:46:25] Speaker 01: Thank you, Your Honor. [00:46:26] Speaker 01: Any time left? [00:46:28] Speaker 01: Okay, Mr. Morrison, we gave Mr. Teddy a lot of time, so you can take three minutes. [00:46:34] Speaker 02: I want to begin by quoting what Terry said. [00:46:38] Speaker 02: He said, we can get any document that OLC has, meaning we get documents at the time we make our request. [00:46:46] Speaker 02: Our request is for OLC on a continuing, ongoing basis to publish these opinions so that everybody can have them and the relief you can get after the document is created is different from the relief you can get before. [00:47:00] Speaker 02: Second, as far as the index is concerned, it is true. [00:47:03] Speaker 02: We didn't specify it in our complaint. [00:47:05] Speaker 02: It was made clear to the district court. [00:47:06] Speaker 02: But it is, as the government conceded, an inevitable consequence, a legal consequence. [00:47:11] Speaker 02: If we have these opinions, it has to be made. [00:47:13] Speaker 02: So we didn't think we had to put it in there. [00:47:15] Speaker 02: But it's clearly there. [00:47:16] Speaker 02: And it clearly raises a problem different from the production and injunction parts of A2. [00:47:23] Speaker 02: Third point I want to make is that [00:47:25] Speaker 02: The Garcia case on which the government relies, there were two parts of that decision in this court. [00:47:30] Speaker 02: One said that 704 precluded one claim and the other said 704 didn't preclude the claim. [00:47:36] Speaker 02: And that's important because I think what it shows is that the court has recognized the necessity of proceeding on a claim by claim, statute by statute basis to see whether 704 applies. [00:47:48] Speaker 02: The last point I want to make about Kennecott Copper is that the court [00:47:51] Speaker 02: This court specifically did not reach the APA claim in that case because it hadn't been properly presented below. [00:47:58] Speaker 02: And so the extent that Kennecott Copper is relevant, it seems to me, to at least leave open the possibility that an APA case like this can be brought as we have brought it here. [00:48:08] Speaker 02: If the court has no further questions, I have nothing else that I want to add. [00:48:11] Speaker 01: OK. [00:48:11] Speaker 01: Thank you. [00:48:12] Speaker 01: Case is submitted. [00:48:12] Speaker 01: Thank you, Ron.