Volume 922 — Federal Reporter, Third Series

<p> Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Floyd and Judge Thacker joined. </p>

<p> Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Thacker and Judge Harris joined. </p>

<p> Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Diaz and Judge Harris joined. </p>

<p> Dissenting opinion filed by Circuit Judge Pillard. Karen LeCraft Henderson, Circuit Judge: Citizens for Responsibility and Ethics in Washington (CREW), a non-profit advocacy group, seeks to compel the United States Department of Justice's Office of Legal Counsel to make available all of its formal written opinions, as well as indices of those opinions, under the so-called "reading-room" provision of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (a)(2). The district court dismissed CREW's complaint for failure to state a claim upon which relief can be granted, largely based on this Court's decision in Electronic Frontier Foundation v. United States Department of Justice ( EFF ), 739 F.3d 1 (D.C. Cir. 2014). Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice , 298 F.Supp.3d 151 , 155-56 (D.D.C. 2018). We agree and therefore affirm. I. BACKGROUND The authority of the Office of Legal Counsel (OLC) is "nearly as old as the Republic itself." Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice ( CREW I ), 846 F.3d 1235 , 1238 (D.C. Cir. 2017). Since the Judiciary Act of 1789, the United States Attorney General has had the authority "to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments." Judiciary Act of 1789, § 35, 1 Stat. 73 , 93 (codified as amended at 28 U.S.C. §§ 511 - 513 ). The Attorney General has since delegated much of his authority to the OLC. See 28 C.F.R. § 0.25 . The OLC's responsibilities currently include "[p]reparing the formal opinions of the Attorney General; rendering informal opinions and legal advice to the various agencies of the Government; and assisting the Attorney General in the performance of his functions as legal adviser to the President." Id. § 0.25(a). Over the years, the OLC has opined on "some of the weightiest matters in our public life: from the [P]resident's authority to direct the use of military force without congressional approval, to the standards governing military interrogation of 'alien unlawful combatants,' to the [P]resident's power to institute a blockade of Cuba." CREW I , 846 F.3d at 1238 . Although the OLC frequently conveys its legal advice to executive agencies through informal means, it sometimes does so through "formal written opinions." See Memorandum from David J. Barron, Acting Assistant Attorney Gen., to Attorneys of the Office of Legal Counsel, Best Practices for OLC Legal Advice and Written Opinions 1-2 (July 16, 2010) (hereinafter Best Practices Memo). Formal written opinions "take the form of signed memoranda, issued to an Executive Branch official who has requested the [OLC]'s opinion." Id. at 2. The OLC considers its formal written opinions to be "one particularly important form of controlling legal advice." Id. at 1. Indeed, a former head of the OLC has described its formal written opinions and informal advice as "authoritative" and "binding by custom and practice in the executive branch." Josh Gerstein, Official: FOIA Worries Dampen Requests for Formal Legal Opinions , Politico: Under the Radar (Nov. 5, 2015), https://www.politico.com/blogs/under-the-radar/2015/11/official-foia-worries-dampen-requests-for-formal-legal-opinions-215567. The OLC publishes some, but not all, of its formal written opinions. See Best Practices Memo 5. In deciding whether to publish a formal written opinion, the OLC considers "the potential importance of the opinion to other agencies or officials in the Executive Branch; the likelihood that similar questions may arise in the future; the historical importance of the opinion or the context in which it arose; and the potential significance of the opinion to the [OLC]'s overall jurisprudence." Id. "In applying these factors, the [OLC] operates from the presumption that it should make its significant opinions fully and promptly available to the public." Id. The OLC then weighs those factors against "countervailing considerations" such as whether publication "would reveal classified or other sensitive information relating to national security[,] ... would interfere with federal law enforcement efforts or is prohibited by law." Id. Additionally, the OLC "decline[s] to publish opinions when doing so is necessary to preserve internal Executive Branch deliberative processes or protect the confidentiality of information covered by the attorney-client relationship between OLC and other executive offices." Id. at 5-6. Invoking FOIA, CREW seeks to compel disclosure of the OLC's unpublished formal written opinions. Importantly, CREW does not rely on FOIA's "most familiar provision"- § 552(a)(3) -by making a specific request for documents. CREW I , 846 F.3d at 1240 . Instead, CREW relies upon FOIA's reading-room provision, § 552(a)(2). Unlike its more commonly invoked neighbor-which imposes a "reactive" duty on agencies, CREW I , 846 F.3d at 1240 -the reading-room provision affirmatively obligates agencies to "make available for public inspection" several categories of documents even absent a specific request. 5 U.S.C. § 552 (a)(2) ; see CREW I , 846 F.3d at 1240 . As relevant here, the categories include (1) "final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases," (2) "those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register" and (3) "current indexes providing identifying information ... as to any matter ... required by this paragraph to be made available or published." Id. § 552(a)(2). In July 2013, CREW urged the OLC to make available all of its formal written opinions and indices of those opinions. After the OLC declined, CREW sued the Department of Justice to compel disclosure under FOIA's reading-room provision. See CREW I , 846 F.3d at 1240 . The district court dismissed the complaint because CREW improperly brought its claim under the Administrative Procedure Act, 5 U.S.C. § 704 , instead of FOIA's judicial-review provision, 5 U.S.C. § 552 (a)(4)(B). Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice , 164 F.Supp.3d 145 , 151-56 (D.D.C. 2016). We affirmed the dismissal. CREW I , 846 F.3d at 1246 . While CREW I was pending, we also decided EFF . 739 F.3d 1 . In EFF , we addressed a claim brought under FOIA's "reactive" provision seeking disclosure of a formal written opinion the OLC had sent to the FBI. Id. at 4-6 . The court held that the opinion was exempt from disclosure by the deliberative process privilege. Id. at 9-10 . As relevant here, it determined that, notwithstanding the opinion at issue bore some "indicia of a binding legal decision"-namely, that it was "controlling (insofar as agencies customarily follow OLC advice that they request), precedential, and can be withdrawn"-it did not constitute the FBI's "working law" because the OLC "does not speak with authority on the FBI's policy." Id. at 9 . Instead, the court concluded, the OLC opinion was "precisely the sort of 'advisory opinion ... comprising part of a process by which governmental decisions and policies are formulated' that is covered by the deliberative process privilege." Id. at 10 (alteration in original) (quoting Pub. Citizen, Inc. v. Office of Mgmt. & Budget , 598 F.3d 865 , 875 (D.C. Cir. 2010) ). Following our decisions in EFF and CREW I , CREW sent a letter to the OLC in February 2017 renewing its request that the OLC disclose all of its formal written opinions and accompanying indices under FOIA's reading-room provision. The OLC did not respond to the renewed request, prompting CREW to sue again, this time under FOIA's judicial-review provision, § 552(a)(4)(B). The district court dismissed CREW's new complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Citizens for Responsibility & Ethics in Wash. , 298 F.Supp.3d at 156 . It observed that CREW's complaint "is premised on a universal claim" for all of the OLC's formal written opinions and corresponding indices. Id. at 154 . "Accordingly," the court reasoned, "if the [Department of Justice] can identify any formal written opinions that are not subject to FOIA disclosure, CREW's universal claim fails." Id. It then concluded that our EFF decision "dooms CREW's complaint as currently articulated, because it establishes that at least one of OLC's formal written opinions-the opinion in EFF-is exempt from FOIA disclosure." Id. at 155 . The court, however, acknowledged that CREW might state a viable claim if it "amend[ed] its complaint to allege that some specific subset of OLC's formal written opinions [is] being unlawfully withheld." Id. at 156 . The court therefore gave CREW leave to amend its complaint. Id. CREW declined to amend its complaint, however, opting instead to appeal. Notably, CREW is not the only advocacy group seeking to compel disclosure of the OLC's formal written opinions in toto . Campaign for Accountability (CfA), amicus in this appeal, filed a similar suit under FOIA's reading-room provision. See Campaign for Accountability v. U.S. Dep't of Justice , 278 F.Supp.3d 303 , 305 (D.D.C. 2017). There, as here, the district court concluded that EFF foreclosed a universal claim and offered leave to amend the complaint. Id. at 320-23 . Unlike CREW, CfA accepted the invitation and amended its complaint to allege that several subcategories of the OLC's formal written opinions are subject to disclosure under FOIA's reading-room provision. See Am. Compl. ¶¶ 33-49, Campaign for Accountability v. U.S. Dep't of Justice , No. 1:16-cv-1068 (D.D.C. Oct. 27, 2017). The Department of Justice's motion to dismiss CfA's amended complaint remains pending. II. ANALYSIS The Court reviews de novo the dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Coburn v. Evercore Tr. Co., N.A. , 844 F.3d 965 , 968 (D.C. Cir. 2016). To state a claim under FOIA, CREW must plausibly allege "that an agency has (1) 'improperly'; (2) 'withheld'; (3) 'agency records.' " Competitive Enter. Inst. v. Office of Sci. & Tech. Policy , 827 F.3d 145 , 147 (D.C. Cir. 2016) (quoting Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136 , 150, 100 S.Ct. 960 , 63 L.Ed.2d 267 (1980) ). In this case, there is no dispute that the formal written opinions the OLC has declined to publish are "withheld" "agency records." The only remaining question is whether the OLC has withheld those opinions "improperly." An agency withholds its records "improperly" if it fails to comply with one of FOIA's "mandatory disclosure requirements." U.S. Dep't of Justice v. Tax Analysts , 492 U.S. 136 , 150, 109 S.Ct. 2841 , 106 L.Ed.2d 112 (1989). Relevant here, FOIA's reading-room provision mandates that an agency disclose certain enumerated categories of records. See 5 U.S.C. § 552 (a)(2). As previously described, these categories include "final opinions ... in the adjudication of cases" and "statements of policy and interpretations which have been adopted by the agency." Id. § 552(a)(2)(A)-(B). The United States Supreme Court has explained that these categories of records constitute the "working law" of an agency because they "have 'the force and effect of law.' " NLRB v. Sears, Roebuck & Co. , 421 U.S. 132 , 153, 95 S.Ct. 1504 , 44 L.Ed.2d 29 (1975) (quoting H.R. Rep. No. 1497, at 7 (1966)). An OLC opinion in the latter category qualifies as the "working law" of an agency only if the agency has "adopted" the opinion as its own. EFF , 739 F.3d at 9 . Thus, the dispositive question before us is whether CREW has plausibly alleged that the OLC's formal written opinions have all been adopted by the agencies to which they were addressed, subjecting the opinions to disclosure under FOIA's reading-room provision as the "working law" of those agencies. CREW's complaint makes no such allegation. It instead alleges only that the OLC's formal written opinions are "controlling," "authoritative" and "binding." As EFF noted, these descriptors alone are insufficient to render an OLC opinion the "working law" of an agency; that OLC opinions are "controlling (insofar as agencies customarily follow OLC advice that they request), precedential, and can be withdrawn ... does not overcome the fact that OLC does not speak with authority on the [agency's] policy." Id. 1 Importantly, CREW does not allege that all of the OLC's formal written opinions have been adopted by any agency as its own. 2 Because CREW's complaint fails to allege the additional facts necessary to render an OLC opinion the "working law" of an agency, CREW's claim that all of the OLC's formal written opinions are subject to disclosure under FOIA's reading-room provision fails as a matter of law. 3 CREW and the dissent raise four primary objections to our analysis. First , CREW contends that our approach erroneously places on CREW the burden of identifying a subset of the OLC's formal written opinions that constitutes the "working law" of an agency and is therefore subject to disclosure under FOIA's reading-room provision. Granted, as CREW emphasizes, FOIA places the burden "on the agency to sustain its action," 5 U.S.C. § 552 (a)(4)(B), and the agency therefore bears the burden of proving that it has not "improperly" withheld the requested records, Tax Analysts , 492 U.S. at 142 n.3, 109 S.Ct. 2841 . But the OLC's ultimate burden of proof does not alter the antecedent requirement that CREW plead a plausible claim. See Competitive Enter. Inst. , 827 F.3d at 147 ("Jurisdiction under FOIA requires 'a showing that an agency has (1) "improperly"; (2) "withheld"; (3) "agency records." ' Our task, then, is to determine whether the pleadings in the present case allege these requirements sufficiently to survive a motion under Rule 12(b)(6)." (citation omitted) (quoting Reporters Comm. for Freedom of the Press , 445 U.S. at 150 , 100 S.Ct. 960 )). To survive a motion to dismiss, CREW must allege in its complaint "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662 , 678, 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544 , 570, 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007) ). In other words, CREW must do more than allege "facts that are 'merely consistent with' a defendant's liability" or raise only "a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly , 550 U.S. at 557 , 127 S.Ct. 1955 ). Thus, regardless of the OLC's ultimate burden of proof, CREW must first allege factual matter supporting a plausible claim that the OLC "improperly" withheld its formal written opinions-that is, that FOIA's reading-room provision contains a "mandatory disclosure requirement[ ]" obligating the OLC to make those opinions available, Tax Analysts , 492 U.S. at 150 , 109 S.Ct. 2841 . We impose this standard in assessing claims brought under FOIA's reactive provision. Section 552(a)(3) imposes a mandatory disclosure requirement on agencies "upon any request for records" that "reasonably describes such records" and complies with procedural regulations. 5 U.S.C. § 552 (a)(3)(A). Thus, to plead a plausible claim that an agency has "improperly" withheld its records, we require a plaintiff proceeding under FOIA's reactive provision to allege that it made a procedurally compliant request. Cf. Elec. Privacy Info. Ctr. v. IRS , 910 F.3d 1232 , 1235-36, 1239-43 (D.C. Cir. 2018) (affirming dismissal of FOIA claim for tax records of third party when plaintiff failed to obtain third-party's consent as required by Internal Revenue Code and accompanying IRS regulations). If a plaintiff alleges that it has made a procedurally compliant request, the agency must then bear its burden to justify its withholding of records by, for example, demonstrating at summary judgment that the requested documents are exempt from disclosure. See, e.g. , Am. Civil Liberties Union v. U.S. Dep't of Def. , 628 F.3d 612 , 619 (D.C. Cir. 2011). Although FOIA's reading-room provision differs from its reactive provision, the analytical mechanics remain the same. Whether an agency must disclose records under FOIA's reading-room provision turns not on the existence of a plaintiff's request but on the nature of the records-whether they fall within one of § 552(a)(2)'s enumerated categories of documents. 5 U.S.C. § 552 (a)(2). Thus, to plead a plausible claim that that the OLC has "improperly" withheld its formal written opinions under FOIA's reading-room provision, CREW must allege sufficient factual material about the opinions that-if taken as true-would place them into one of § 552(a)(2)'s enumerated categories. Then, and only then, would the OLC bear its burden to justify withholding its formal written opinions. But as previously explained, CREW has alleged only that the OLC's formal written opinions are "controlling," "authoritative" and "binding," which under EFF is insufficient to support a plausible claim that the opinions are the "working law" of an agency subject to disclosure under § 552(a)(2). See 739 F.3d at 9 . In sum, the OLC's burden to sustain its action does not alter our conclusion that CREW has first failed to plead a plausible claim. Second , the dissent argues that in any event, CREW's complaint alleges sufficient factual material to state a plausible claim that the OLC's formal written opinions are subject to disclosure under FOIA's reading-room provision. Dissent 490-92. Revealingly, however, the dissent does not rest its analysis solely on the factual allegations in CREW's complaint-that the OLC's formal written opinions are "controlling," "authoritative" and "binding"; instead, the dissent supplements those allegations with others not contained in the complaint. For example, the dissent presents one of the OLC's formal written opinions regarding the Defense of Marriage Act as an example of an opinion that may be subject to disclosure under FOIA's reading-room provision. Id. at 491-92. Regardless of the plausibility of the complaint the dissent describes, that is not the complaint CREW filed in the district court. We are therefore left with assessing the sufficiency of CREW's actual allegations that the OLC's formal written opinions are "controlling," "authoritative" and "binding." As we have explained, these allegations alone are insufficient to present a plausible claim that the OLC's formal written opinions fall within one of the reading-room provision's enumerated categories. Third , the dissent argues that we draw too much from EFF and thus require CREW to plead around potential FOIA exemptions. Id. at 491-93. The dissent, however, wrongly treats EFF as only an exemption case. Although EFF ultimately held that an OLC formal written opinion is exempt from disclosure, the decision adopted the broader rule that the OLC's formal written opinions are not the "working law" of an agency simply because they are nominally "controlling." 739 F.3d at 9 . In the context of FOIA's reading-room provision, that an OLC formal written opinion is not the working law of an agency means that it does not fall within one of the reading-room's enumerated categories and therefore is not subject to disclosure even absent an exemption. See Sears, Roebuck & Co. , 421 U.S. at 153 , 95 S.Ct. 1504 . Thus, our decision today does not require CREW to anticipate potential exemptions; consistent with EFF , it requires only that CREW plead more than that the OLC's formal written opinions are "controlling" to make out a plausible claim that the opinions are the working law of an agency subject to disclosure under FOIA's reading-room provision. Fourth , CREW complains that requiring it to identify a subset of the OLC's formal written opinions subject to FOIA's reading-room provision is unfair as a matter of policy because it "imposes a burden of proof that is almost impossible for CREW to meet." But the purported unfairness CREW faces is self-inflicted. CREW declined to avail itself of other measures at its disposal, not the least of which was acceptance of the district court's invitation to amend its complaint as amicus CfA has done. 4 See Am. Compl. ¶¶ 33-49, Campaign for Accountability , No. 1:16-cv-1068 (amended complaint identifies several subcategories of OLC's formal written opinions CfA believes are subject to FOIA's reading-room provision). 5 CREW also would have had no difficulty carrying its pleading burden, and thereby putting the OLC to its burden to sustain its action, had it proceeded under FOIA's reactive provision, § 552(a)(3), and requested formal written opinions the OLC issued on specific subjects. See, e.g. , Judicial Watch, Inc. v. U.S. Dep't of Def. , 913 F.3d 1106 , 1108 (D.C. Cir. 2019) (addressing at summary judgment FOIA request for memoranda prepared for the President in relation to his decision to order military strike on Osama bin Laden's Pakistani compound); EFF , 739 F.3d at 6 (addressing at summary judgment FOIA request for OLC opinion discussing FBI's use of "exigent letters"). CREW's failure to pursue these alternatives causes its cries of unfairness to ring hollow. 6 For the foregoing reasons, the judgment of the district court dismissing CREW's complaint is affirmed. So ordered. CREW urges that the OLC opinion at issue in EFF was not a formal written opinion because it was not "prospective" and because it only examined "policy options." We disagree. EFF described the OLC opinion as "bear[ing] ... indicia of a binding legal decision," including that the opinion was "controlling" and "precedential." Id. at 9 . Moreover, the OLC opinion in EFF examined the FBI's policy options by "describ[ing] the legal parameters of what the FBI is permitted to do"-which most certainly is a legal determination. Id. at 10 . Based on these descriptions, the OLC opinion in EFF has all the indicia of a formal written opinion, even as CREW defines that term in its complaint. See Best Practices Memo 1-2, 5. At the same time, we are skeptical of the Department of Justice's position that none of the OLC's formal written opinions constitutes the "working law" of an agency subject to disclosure under FOIA's reading-room provision. Presumably, at some point in the OLC's history, an agency may have adopted at least one of the OLC's formal written opinions as its own. CREW's derivative claim for indices of the OLC's formal written opinions thus also fails as a matter of law. See 5 U.S.C. § 552 (a)(2) (agency must make available indices of records covered by FOIA's reading-room provision). Unsurprisingly, after supplementing CREW's complaint with allegations identifying at least two subsets of the OLC's formal written opinions potentially subject to disclosure under FOIA's reading-room provision, Dissent 490-92, the dissent finds requiring CREW to amend its complaint unnecessary, id. at 492-93 . We do not address the merits of CfA's amended complaint. CREW raises two other objections that we dismiss by footnote. First, CREW asserts that the district court "err[ed] in its construction of the fundamental nature of CREW's claims" by "mischaracteriz[ing] the Complaint as premised on a claim for all OLC opinions." CREW thus suggests the district court improperly understood CREW's complaint to seek not only the OLC's formal written opinions but also its informal opinions and other forms of "controlling" legal advice. We are not persuaded. The district court accurately recounted that "the complaint contends that 'OLC's formal written opinions , described in the Best Practices Memo,' are subject to mandatory publication under 5 U.S.C. § 552 (a)(2)." 298 F.Supp.3d at 153 (emphasis added) (quoting Compl. ¶ 27). The court then proceeded to discuss only "formal written opinions," using the phrase over twenty times in a five-page opinion. See id. at 152-56 . And in discussing the relevance of our EFF decision, the district court emphasized "[t]here is every indication" that the OLC opinion at issue in that case "was both formal and written." Id. at 154 n.4. CREW's assertion that the district court misconstrued its complaint is therefore baseless. Second, CREW complains that the district court misconstrued EFF as "establishing that all or virtually all OLC opinions CREW seeks are privileged and therefore not subject to FOIA's reading room provision." CREW bases its complaint on the district court's observation that "[e]ven more broadly, [ EFF ] suggests that many of OLC's formal written opinions would be subject to the same deliberative process privilege." 298 F.Supp.3d at 155 . Here it is CREW, not the district court, who is guilty of misconstruction. The district court's observation that EFF " suggests that many of OLC's formal written opinions" are privileged-a fair reading of EFF -is a far cry from the proposition CREW now attributes to the court: that EFF " establish[es] that all or virtually all OLC opinions" are privileged. We see no error in the district court's characterization of EFF . </p>

<p> Petition denied by published opinion. Judge Wilkinson wrote the opinion, in which Judge Keenan and Judge Richardson joined. </p>

<p> Affirmed by published opinion. Senior Judge Duncan wrote the opinion, in which Judge Wilkinson and Judge King joined. </p>