N.Y. Legal Assistance Grp. v. BIA, No. 19-3248, 2021 WL 401269 (2d Cir. Feb. 5, 2021) (Lynch, J.)

N.Y. Legal Assistance Grp. v. BIA, No. 19-3248, 2021 WL 401269 (2d Cir. Feb. 5, 2021) (Lynch, J.)

Re:  Request that BIA make publicly available in electronic format all unpublished opinions issued since November 1, 1996, as well as any future unpublished opinions

Disposition:  Vacating district court's grant of defendant's motion to dismiss; remanding for further consideration

• Proactive Disclosures:  The Court of Appeals for the Second Circuit holds that "[t]he text of FOIA's remedial provision and the 1974 amendment to it, considered in light of FOIA's history and purpose, make clear that Congress gave courts the authority to enforce an agency’s obligation to make certain documents publicly available." 
   
  First, "[the court] decline[s] to follow the D.C. Circuit's decision [on this point]."  The court notes that both parties in a recent D.C. Circuit decision, Citizens for Responsibility & Ethics in Washington v. United States Dep’t of Justice, 846 F.3d 1235 (D.C. Cir. 2017), "'narrowly construe[d] FOIA's remedial provision,' assuming that, on its face, the text does not permit the court to order that documents be made available for public inspection."  "Consequently, the court spent little time parsing the text of the statute, and instead proceeded directly to considering whether courts had equitable authority to order the remedy CREW sought."  "As described below, however, [the court] find[s] that the text of FOIA's remedial provision does support the position that courts may order the relief sought here."  "Therefore, [the court determines that it] need not rely on the equitable power the D.C. Circuit rejected."  "Moreover, the court in [the D.C. Circuit case] clearly considered itself bound by its prior decision" and [the court], of course, [is] not bound by that precedent."  The court then discusses the Ninth Circuit's holding in Animal Legal Defense Fund v. USDA, 935 F.3d 858 (9th Cir. 2019) and notes that it "concluded that the remedy plaintiffs sought was authorized by FOIA's remedial provision."  The court notes that "[the Ninth Circuit] began with the text of the provision and concluded that the words 'mean what they say:  FOIA authorizes district courts to stop the agency from holding back records it has a duty to make available' and order them to be made publicly available."  "The court also noted that if the provision allowed courts to order the production of documents only to the complainant, 'then the judicial-review provision would not need the words "jurisdiction to enjoin the agency from withholding agency records,"' which would be superfluous."  "The [Ninth Circuit] turned next to the structure of FOIA, and relied on the fact that Congress made clear that the judicial review provision applies to all three parts of § 552(a)."  In light of the differences in the two approaches taken on this issue, the court then "undertake[s] [its] own independent analysis of the proper interpretation of FOIA's remedial provision."
   
  The court "conclude[s] that the text, the context, the historical evolution, and the purpose of that provision all support the conclusion that Congress has authorized courts to order agencies to comply with the obligations Congress imposed on them in § 552(a)(2)."  The court notes that "'[e]very exercise in statutory construction must begin with the words of the text.'"  The court finds that "[o]n one hand, the phrase 'to the complainant' appears somewhat redundant if it is not read to limit the court's power."  "However, 'a coordinating junction like "and"' is typically used for 'linking independent ideas,' . . . suggesting that Congress meant to authorize courts to exercise two independent powers, only the second of which would be modified by the phrase 'to the complainant.'"  "Moreover, the syntax of the provision belies the BIA's argument."  "The conjunction 'and' links two infinitives:  'to enjoin' and 'to order.'"  "The phrase 'from the complainant' appears in the phrase governed by the latter infinitive."  The court further finds that "[i]f Congress intended the interpretation that the BIA proposes, it would be far more natural to draft the provision as:  'to enjoin the agency from withholding agency records from the complainant, and to order the production of any agency records improperly so withheld.'"  "While both parties' readings are possible, [plaintiff's] interpretation seems to us by a good measure the more natural meaning of the language chosen by Congress."  The court notes that the parties make arguments concerning "the canon against superfluity, each arguing that its opponent's reading violates the 'cardinal rule' that 'instructs courts to interpret a statute to effectuate all its provisions, so that no part is rendered superfluous,'" but "[the court] think[s] that the arguments from superfluity on both sides add little or nothing to the textual analysis above."  Also, concerning plaintiff's arguments surrounding the word "withholding," the court finds that "it is entirely natural to say that an agency 'withholds' documents when it fails to publish them in violation of a direct statutory command that they be published in a manner accessible to the public."  Regarding the "broader context of the contested provision," the court relates that "[plaintiff] points out that the judicial review provision states that courts, in determining the scope of relief, must 'accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C).'"  "That clause refers to an affidavit concerning the feasibility of indicating the extent of a deletion from staff manuals and instructions to staff made publicly available under paragraph 2(C), which, according to [plaintiff], shows that Congress anticipated that courts could order agencies to make documents available for public inspection under the judicial review provision – otherwise, the question of technical feasibility would have little relevance."  "[Plaintiff] is correct that the provision suggests that Congress apparently contemplated judicial orders to agencies to comply with the obligations imposed by provisions other than § 552(a)(3)."  "Even more persuasively, [plaintiff] argues that reading the statute as the BIA proposes, such that the only remedy available when an agency fails to provide records under §§ 552(a)(1) or (a)(2) duplicates the relief that the complainant would have gotten had it instead requested copies of those records under § 552(a)(3), would render the proactive disclosure requirements in the first two paragraphs merely precatory."  Regarding the statutory evolution, the court finds that "[the 1974 Senate Judiciary Committee Report's] . . . account of the intent behind the 1974 amendment itself is persuasive, because it corresponds to the very change being made in the structure of the statute by that amendment. Whether the amendment merely corrected an unintended glitch in the original language or effected a change, there can be little doubt that by relocating the judicial review provision Congress amended FOIA to make clear that judicial review is available when an agency fails to comply with any provision of § 552(a).  Finally, the court finds that "[a] broad reading of FOIA's remedial provision is also consistent with the statute's purpose."  "FOIA 'was enacted to facilitate public access to Government documents.'"  "In effect, the BIA asks [the court] to adopt a position that would ensure that the BIA 'would have no enforceable duty to post . . . its final opinions in agency adjudication.'"  "While Congress does not pursue a unitary purpose to the exclusion of all other interests, the BIA (supported by the dissent) urges us to limit the judicial review that Congress provided for the enforcement of a specific obligation Congress imposed on it, by limiting the relief in a manner inconsistent with that specific obligation, without suggesting any plausible countervailing interest that would warrant such a limitation."  "And it would have us do so based on the less persuasive reading of the statutory text."
  
  Circuit Judge Park, dissenting, writes that "[t]he majority today finds in FOIA's judicial-review provision an authority that is (1) not stated expressly in the statutory text, (2) inconsistent with the statutory structure, and (3) unsupported by the statutory history."  Circuit Judge Park states that "the majority adopts a strained interpretation of the statutory text, which is more naturally read to limit courts’ remedial authority to ordering the production of records to requesters."  Circuit Judge Park also writes that "Congress did not include in FOIA the enforcement authority the majority divines from the review provision."  "That omission makes sense in light of the three ways Congress did provide for courts to address agency non-compliance with FOIA's disclosure obligations:  Courts may (1) require the production of records to a particular complainant, (2) refer matters to the Office of Special Counsel for further investigation, and (3) prohibit agency reliance on undisclosed records."  "Each of these mechanisms is consistent with the individual nature of the judicially enforceable rights asserted by FOIA plaintiffs."  Finally, regarding statutory history, Circuit Judge Park states that "[the majority] reads too much into the statutory history."  "Providing for judicial review is not the same as expanding the scope of courts' remedial authority, and the majority points to nothing else supporting its inferential leap."