Citizens for Responsibility and Ethics in Washington v. DOJ, No. 13-01291, 2016 WL 912167 (D.D.C. Mar. 7, 2016) (Mehta, J.)

Citizens for Responsibility and Ethics in Washington v. DOJ, No. 13-01291, 2016 WL 912167 (D.D.C. Mar. 7, 2016) (Mehta, J.)

Re: Plaintiff's claim that DOJ has violated FOIA by failing to make legal opinions issued by Office of Legal Counsel publicly available under subsections 552(a)(2)(A) and (a)(2)(B)

Disposition: Granting defendant's motion to dismiss

• Litigation Considerations & Proactive Disclosures:  "The court concludes that Plaintiff has filed its suit under the wrong statute."  "An action, as here, that seeks to compel a federal agency to comply with Section 552(a)(2) must be filed under FOIA."  "It cannot be brought under the APA."  The court notes that "the primary question the court must address here is whether a suit alleging that an agency has violated Section 552(a)(2) must be brought under FOIA, and FOIA alone, or whether such a claim can be advanced under the APA."  The court first finds that the "FOIA provides a remedy for a violation of Section 552(a)(2)." The court finds that, "contrary to Defendants' position, . . . to enforce the requirements of Section 552(a)(2), a plaintiff need not first make a request under Section 552(a)(3)."  "Rather, the request can be made directly under Section 552(a)(2), so long as the request, like those made under Section 552(a)(3), is for 'identifiable' records."  "In short, although Defendants are wrong to assert that an action to enforce compliance with Section 552(a)(2) can only be brought through a suit over a specific records demand made under Section 552(a)(3), they are right to assert that FOIA is the proper statutory vehicle for such an action."  "A suit to enforce the requirements of Section 552(a)(2) is thus available under Section 552(a)(4)(B)."  Second, the court finds that "FOIA provides an adequate remedy, thus precluding review under the APA."  The court finds that "[t]he statute itself provides district courts with the authority 'to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.'"  "The statute's use of the conjunctive 'and' suggests that district courts have the power to issue injunctive relief beyond merely compelling disclosure of records."  Additionally, the court finds that "even if the court's authority were limited to ordering DOJ to disclose extant OLC opinions that Plaintiff specifically requested under Section 552(a)(2), such relief is of the 'same genre' as the relief that Plaintiff seeks under the APA."