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Main St. Legal Servs. v. Nat'l Sec. Counsel, No. 13-3792, 2016 WL 305175 (2d Cir. Jan. 26, 2016) (Raggi, J.)

Date

Main St. Legal Servs. v. Nat'l Sec. Counsel, No. 13-3792, 2016 WL 305175 (2d Cir. Jan. 26, 2016) (Raggi, J.)

Re: Request for records concerning drone strikes

Disposition: Affirming district court's grant of appellee's motion for summary judgment

  • Procedural Requirements, Entities Subject to the FOIA:  The Court of Appeals for the Second Circuit holds that "the [National Security] Council is not an agency subject to the FOIA because its sole statutory function is to advise and assist the President."  The court finds that the "use of the definite article to describe 'the function' of the Council in the [authorizing] legislation’s first subsection makes clear that the sole function statutorily conferred on the Council is advisory to, and not independent of, the President."  "Nor can a grant of independent authority be located in the next, 'Additional functions,' subsection of the National Security Act."  The court "conclude[s] that the sole statutory authority conferred on the Council is to advise and assist the President" and, "[b]ecause the Council lacks any authority independent of the President, it is not an agency subject to the FOIA."  Additionally, responding to appellant's arguments, the court finds that "cited references to the NSC as an agency were made at a time when the NSC oversaw the CIA, which is itself an agency subject to the FOIA."  "Those references say nothing about whether the NSC-as it exists today-functions as an agency."

Additionally, the court finds that "the NSC System is not an agency subject to the FOIA."  The court notes that the fact that the NSC is not an entity subject to the FOIA "gives rise to a strong presumption that Congress intended to confer no more authority on the NSC System than it conferred on the Council at its head."  The court finds that "relevant statutory provisions provide for the various parts of the NSC System to perform functions that advise and assist the Council and the President."  "They confer no authority independent of the President so as to make the NSC System an agency subject to the FOIA."  Additionally, the court can "identify nothing in the President’s organization of the NSC System that allows any part thereof to exercise authority independent of the President."  "Rather, . . . the NSC System [is organized] to establish a hierarchy of interagency fora for providing the President with information and recommendations on national security issues from across the executive branch, as well as for coordinating implementation of the President’s policies across government departments."  The court also "reject[s] [appellant's] argument that the cited executive orders confer on the Council or NSC System any authority that can be exercised independent of the President."  Additionally, the court "conclude[s] that the NSC’s past promulgation of regulations cannot support a conclusion that it currently exercises any authority independent of the President or performs any function but to advise and assist the President."  The court also finds that "the actions [appellant] attributes to the NSC System," such as "the selection of drone targets," "do not raise a plausible inference of independent authority so as to make the NSC an agency subject to the FOIA."

Circuit Judge Wesley, concurring and writing separately, states that "[f]or over twenty years, the Executive Branch and the Court of Appeals that most frequently interacts with FOIA as applied to the chief offices of government have concluded that the NSC is one of those exempt units, and . . . that conclusion apparently has been accepted by the Congress without much controversy."  "Whether that conclusion is wise policy, or whether it accurately captures the intent of the Congress in adopting the FOIA amendments, is best considered a political issue for Congress and the President, not for this Court."

  • Litigation Considerations, Jurisdiction:  The Court of Appeals for the Second Circuit holds that, "[a]bsent agency, a court properly dismisses a FOIA claim on the merits, not for lack of subject-matter jurisdiction."  "Based on its text, [the court] construe[s] § 552(a)(4)(B) to reference remedial power, not subject-matter jurisdiction."  "The highlighted language does not speak to the court’s ability to adjudicate a claim, but only to the remedies that the court may award."  "Because § 552(a)(4)(B) does not implicate subject-matter jurisdiction, [the court] conclude[s] that the district court properly dismissed the complaint on the merits pursuant to Fed.R.Civ.P. 12(b)(6), and [the court] affirm[s] that judgment."
     
  • Litigation Considerations, Discovery:  The Court of Appeals for the Second Circuit holds that "[t]o the extent [appellant] pointed to publicly available materials to support its agency allegations, we have just explained why those materials do not admit a plausible claim."  "In the absence of a plausible claim of agency, the district court acted within its discretion in granting dismissal without affording [appellant] discovery."
Court Decision Topic(s)
Court of Appeals opinions
Litigation Considerations, Discovery
Litigation Considerations, Jurisdiction
Procedural Requirements, Entities Subject to the FOIA
Updated January 13, 2022