Citizens for Responsibility & Ethics in Washington v. DOJ, No. 18-5116, 2019 WL 1907230 (D.C. Cir. Apr. 30, 2019) (Henderson, J.)

Citizens for Responsibility & Ethics in Washington v. DOJ, No. 18-5116, 2019 WL 1907230 (D.C. Cir. Apr. 30, 2019) (Henderson, J.)

Re:  Requester's attempt to compel OLC to disclose all formal written opinions and indices of opinions

Disposition:  Affirming district court's grant of government's motion to dismiss

• Litigation Considerations, Pleadings & Proactive Disclosures:  The Court of Appeals for the District of Columbia Circuit holds that "[b]ecause [the requester's] complaint fails to allege the additional facts necessary to render an OLC opinion the 'working law' of an agency, [the requester'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."  The court finds that plaintiff "alleges only that the OLC's formal written opinions are 'controlling,' 'authoritative' and 'binding.'"  The court finds that "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are 'controlling (insofar as agencies customarily follow OLC advice that they request), precedential, and can be withdrawn .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.'"  "Importantly, [the requester] does not allege that all of the OLC's formal written opinions have been adopted by any agency as its own."  Responding to the requester's objection, the court finds that "OLC's ultimate burden of proof does not alter the antecedent requirement that CREW plead a plausible claim."  "[R]egardless of the OLC's ultimate burden of proof, [the requester] 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."
  
  Judge Pillard, dissenting, states that "[b]ecause [he] conclude[s] that [the requester's] allegations plainly suffice to state a claim, entitling it to a remand for further proceedings, [he] respectfully dissent[s]."  Judge Pillard relates that "[t]hose decisions may or may not as a legal matter amount to 'final opinions . . . made in the adjudication of cases' within the meaning of Section 552(a)(2); perhaps 'adjudications' between two parts of the executive branch are not the kind of 'adjudication of cases' to which that section refers."  "But [the requester's] allegations suffice to fairly present its claim that they are."