.UNITED STATES DISTRIC'I` COURT
F()R THE DISTRICT OF C()LUMBIA

 

l CITIZENS FOR REsPoNsIBILITY AND _
ETHICS IN WAs_HINGToN, . t

Plaintiff,

V' ease N@. 1:17-cv-00432-TNM

UNITED STATES_ DEPARTMENT OF'
JUSTICE,

Defendant_.

 

 

MEMORANDUM OPINION _

In this suit, the Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”)
seeks a court order requiring the publication _of “all existing and future . . . formal Written
opinions” issued by the Office of Legal Counsel (“OLC”), Compl. 8-9, a component of the U.S.
Department ofJustice that provides “the opinion of the Attorney General on questions of law”
arising Within the executive branch. 28 U.S.C. § 512. CREW contends that these documents are
subject to the Freedom of Information Act’s “re_ading room” provision, which requires that
` specific categories of records be affirmatively made “available-for public inspection in an

electronic format.” 5 'U.S.C. § 552(a)(2). But this claim fails as a matter of law, since at least
-Some of the documents sought are subject to FOIA E'xemption 5, which protects both the
deliberative process privilege and the attorney-client privilege Elec.- Froniier Found. v. U.S.

Dep 't of Justice, 739 F.Bd'l, 4 (D.C. Cir. 2014) (“EFF”). rThis Well-settled law presents an
obvious and insurmountable barrier to ordering the universal publication of OLC’s formal
Written opinions. Accordingly, l Will dismiss CREW’s complaint for failure to state a claim upon

. Which relief can be granted

 

 

 

I. Background

ln 2013, CREW requested the same relief under the auspices of the Administrative
Procedure. Act (APA), but the District Court dismissed the claim for lack of jurisdiction, and the
_ D.C. Circuit affirmed Cii‘ize_nsfor Responsibili'ly & Erhi'cs in Washington v. U.S. Dep'f of
Justice, 164 F. Supp. 3d 145, 147 (D.D.C. 2016) (“CREWP?); Citizensfor Responsibility &
Ethics in Washingron v. Um`tea' Sl‘ates Dep't of.]ustice, 846 F.3d 1235 (D.C. Cir. 2017) (“CREW
H”). Both decisions concluded that “Plai_ntiff . . . filed its suit under the Wrong statute,” CREWI,
164 F. Supp. 3d at 147, because the'APA provides jurisdiction only When “there is no other
adequate remedy in a court,” 5 U.S.C. § 704, and “precedent establishes that a plaintiff in
CREW's position may bring a FOIA claim to enforce the reading-room provision.” CREWH,
846 F.3d at 1245. l

CREW filed the instant suit in 2017, this time under FOIA.1 The complaint contends that
the DOJ has a “mandatory, non-discretionary duty”_ under 5 U.S.C. § 552(a)(2) “to make
available to the plaintiff on an ongoing basis formal written opinions issued by the DOJ’s Office
of Legal Counsel . . . and indices of such opinions.” Compl. 11 l._ CREW alleges that it has

` “repeatedly and unsuccessfully sought access to OLC opinions through individual FOIA requests

 

l While the appeal of CREWI Was pending, the plaintiffs attorney in that case (Ms. Anne
Weismann) filed a substantially similar suit under FOIA, on behalf of the Campaign for
Accountability. Campaignfor Accounfability v. U.S. Dep"i‘ of Justice, 2017 WL 4480828 at *5
(D.D.C. 2017). The District Court dismissed that claim in a thorough opinion, presaging the
logic of this one. Id. at *2 (“CfA has not identified an ascertainable set of OLC opinions that
OLC has Withheld from the public and that is also plausibly subject to the FOIA’s reading-room
requirement”). An amended complaint is currently.pending in that case, alleging that five
specific categories of OLC’s opinions must be disclosed under FOIA’s reading room provision
Am. Cornpl., Campaign for Accountability v. U.S. Dep’t of Justice, No. l6-cv-1068 (D.D.C.

. Oct. 27, 2017), ECF. No. 22. Pursuant to briefing submitted by the parties in this case, and after
considering Local Civil Rule 40.5,1 conclude that interests of judicial economy currently weigh
in favor of keeping these cases separate, given the different claims at issue and the fully- briefed
Status of the instant motion to dismiss.

 

 

for specific categories of OLC opinions and broader requests,” including a request on \February

3, 2017 “for all OLC formal written opinions and indices of those opinions.” ]d. 1[1] 7, 22. ln
addition, the complaint provides an overview `of OLC’s function and history, alleging that the
-Government has itself described OLC opinions as “controlling advice,” “authoritative,” and
“binding by custom and practice in the executive branch.” Id. W 13-21 (quoting, inter alia, `
l\/lemorandurn from David J. Barron, Acting Assistant Attorney General, to Attorneys of the
Office, Best Practices for OLC Legal Advice_and Written Opinions, (July l6, 2010) available at
https://w\irw.iustice.gov/olc/best-practices-olc-legal-advice-and-written-opinions (last accessed j
February 22, 2018) (‘_‘Best Practices Memo”). As Count I, the_complaint contends that “OLC’s
` formal written opinions, described in the Best Practices Memo,” are subject to mandatory

l publication under 5 U.S.C. § 552(a)(2). Compl. il 27. As Count ll, the complaint claims that
indexes of these opinions must also be made available under 5 U.S.C. § 552(a)(2)(E). Id. at iii
33-34. n

As relief, CREW seeks a declaration that the DOJ has violated FOIA, orders requiring the

D'OJ to “make available to CREW for public inspection and copying on an ongoing basis all
existing and future OLC formal written-opinions” and indices thereof, and an award of attorneys’
fees and costs._ Compl. 8-9. The Governrnent filed a motion to dismiss, contending that the
complaint’s request for all of OLC’S formal, written opinions failed to state a claim under Fed.
n R. Civ. P. l2(b)(6j, and that to the extent CREW “seel<s to advance a different 'claim” for a sub-
category of those opinions, that claim was “neither ripe nor adequately plead.” Mem. In Support

of l\/Iot. Dismiss 8 (hereinafter “Mot. Dismiss”).

 

 

Il. Legal Standards l

“[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations.” Bell Arl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.”’ Ashcroft v. Iqbaf, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). “A claim crosses from conceivable to plausible when it contains factual allegations that,
if proved, would ‘allow the court to draw the reasonable inference that the defendant is liable for-
the misconduct alleged.”’ Banneker Vem‘ures, LLC v. Gmham, 798 F.3d lll9, 1129 (D.C. Cir.
2015) (alteration omitted) (quoting Iqb_al, 556 U.S. at 678). A court must “draw all reasonable
inferences from those allegations in the plaintiffs favor,”- but will not “assume the truth of legal

conclusions.” Id.z

III. Analysis

CREW invokes FOIA’s “reading room” provision, which provides as follows:

Each agency . . . shall make available for public inspection in an
electronic format_

(A) final opinions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of cases;

(B) those statements of policy andinterpretations which have been
adopted by the agency and are not published in the Federal
Register. . . and

(E) . . . current indexes providing identifying information for the
public as to any matter issued, adopted, or promulgated after July
4, 1967, and required by this paragraph [subsection (a), paragraph
(2)] to be made available or published. . . .

¢

5 U.S.C. § 5 52(a)(2). By its terms, the entire-Act~»including the reading room provision-- ‘does

not apply” to nine specific exemption categoriesl 5 U.S.C. § 552(b)(l)-(9); NLRB v. _Sears,

 

2 Because l conclude that Rule lZ(b)(é) requires dismissal, l will not address the standards
applicable to a Rule l2(b)(l) motion. ‘

 

 

Roebuck & Co., 421 U.S. 132, 147_4§ (1975) (“if the memoranda . . . fall within one of the Act’s
exempt categories, our inquiry is at an ,end, for the Act ‘does not apply’ to such documents.”).

CREW’s suit is premised on a universal claim: “all existing and future OLC formal
written opinions” and indices thereof are subject to mandatory disclosure under 5 U.S.C. §
552(a)(2))_. Compl. 8~9;' ld. 111[ l, 27-28, 34.3 Accordingly, if the DOJ can identify anyformal
written opinions that are nor subject to FOIA disclosure, CREW’s universal claim fails, and the n
suit cannot survive the motion to dismiss. However, the D.C. Circuit has already made it clear
that even when a formal, written OLC opinion is “controlling (insofar as agencies customarily
y 7 follow OLC advice that they request)” and “precedential,” that opinion can still be exempt from
disclosure EFF, 739 F.3d'at 9; See also Campaign for Accountabili'i‘y, 2017 WL 4480828 at * 15
(D.D.C.2017). This decision squarely forecloses CREW’s all-inclusive claim.

In EFF, the D._C. Circuit confronted a FOIA request for a formal, written OLC opinion
regarding certain fBl_investigative techniques.' EFF, 739 F.3d at 5.4 'l`_he District Court had

found that the entire O_LC opinion was “covered by the ‘deliberative process privilege’ in FOIA

 

3 The complaint identifies no sub-categories for_individual resolution; the request is for `all or
nothing Id. Although CREW’s Opposition memorandum suggests that “OLC insists all its
opinions are privileged,” Opp. 3 (emphasis in original), it is CREW--not the Government-that
has made the sweeping claim regarding the body of OLC’s'work. In short, CREW appears to
misread the Government’s Motion to Dismiss and its own Complaint, rendering most of its
counter-arguments irrelevant See, e.g. Opp. 22 (“the government has provided the Court with
no facts supporting its central premise that OLC has an attorney-client relationship with all
agencies in all situations in which they seek OLC’s advice.”). lt is CREW, not the Government,
which must defend a claim regarding “all” of OLC’s formal, written opinions Compl. 9.

4 There is every indication that the OLC opinion was both formal and written. Id. at 9
(describing the 'OLC opinion as “controlling” and “precedential,” and thus “bear[ing] these
indicia of a binding legal decision.”). Although CREW points out that “[a]t no point did [EFF] _
' reference the category of formal, written opinions addressed in OLC’s Best'Practices l\/lemo,”
Opp. \14, that memo states that “for`rnal written opinions . . . take the form of signed memoranda
issued to an Executive Branch official who has requested the Office’s position.” Best Practices
l\/lemo 2. That appears to be exactly the type of document discussed in EFF. `

5

 

Exemption 5, which covers documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are n
formulated.” EFF, 739 F.3d at 3 (intemal quotation marks and citations omitted). The D.C.
Circuit affirmed on the same basis. ld. at 4. Although the deliberative process privilege “calls
for disclosure of all opinions and interpretations which embody the agency’s effective law and
po-licy, and the withholding of all papers which reflect the agency’s group thinking in the process
of working out its policy and determining what its law shall be,” NLRB v. Sears, Roebuck & Co.,
421 U.S'. 132,'153 (1975) (aiticuiating the “working law” doctrine), EFF rejected any claim that
the OLC opinion constituted the FBI’s` effective or working law. EFF, 739 F.3d at 8-9. _
“Because OLC cannot speak authoritatively on the FBI’s policy,” the D.C. Circuit concluded that
the OLC’s opinion constituted mere legal advice, thus fitting squarely within the deliberative
process exemption Id. at 9. ~ln short, “OLC is not authorized to make decisions about the FBl’s
investigative policy, So the OLC Opinion cannot be an authoritative St_atement of the agency’s
policy.” ld. This holding dooms CREW’s complaint as currently articulated, because it l
establishes that at least one of OLC’s formal written opinions_the opinion in EFF_is exempt
from FOIA disclosure pursuant to Exemption 5. Even more broadly, the opinion suggests that
many of OLC’s formal written opinions would be subject to the same deliberative process
privilege Icl. at 10 (explaining that the privilege can only be waived if an agency adopts the
OLC’s reasoning as its own).

Even if the deliberative process privilege did not apply, the attomey~client privilege
would also preclude CREW’s carte blanche access to OLC’s formal written opinions FOlA
Exemption 5, which allows the Govemment to withhold “inter-agency or intra-agency

memorandums or letters which would not be available by law to a party other than an agency in

 

litigation with the agency,” 5 U.S.C. § 552(b)(5)l also protects documents subject to attomey-
client privilege. EFF, 739 F.3d at 4; New York Tz'mes Co. v. U.S. Dep'r ofJusti'ce, 806 F.3d 682,
684 n. 1 (2d Cir. 2015). Attorney-client privilege applies equally to “confidential
communications between Govemme`nt officials and Governrnent attorneys,” just as it does
outside the government context. Um'teal States v. Ji`carl`lla Apache Nation, 564 U.S. 162, 170
l(2011). Accordingly, several courts have held that OLC opinions are protected by attorney-
client privilege, since they embody confidential legal advice given by OLC to other components
of the Executive Branch. Nar’l Sec. Counselors v. C.I.A., 960 F. Supp. 2d 101, 196 (D.D.C.
. 2013); Am. Civil Liberries Um`on v. Dep't ofJusrlce, 2011 WL 1065734_2 at *9 (D.D.C. Feb. 14, _
2011), Citizensfor Responslbillij) & Ei‘hi`cs in Washington v. Nat’l Arcl’iives & Recora's Aclmin.i
583 F. Supp. 2d 146, 165 (D.D.C._2008). Given OLC’S role as “the most Significant centralized
source of legal advice within the Executive Branch,” CREWII, 846 F.3d at 1238 (quoting Trevor
W. Morrison, Stare Declsis in the Ojjice of Legal Counsel, 1 10-Co_lum. L. Rev. 1448, 1451
(2010)), l cannot reasonably infer that none of OLC’s formal written opinions are protected by
attorney-client privilegel

' if CREW amends its complaint to allege that some specific subset of OLC’s formal,
written opinions are being unlawfully withheld, it could theoretically allege in adequate detail
that certain OLC opinions are “final opinions . . . made in the adjudication of .cases” or are
“statements of policy and interpretations which have been adopted by the agency and are not
published in the Federal Register.” See 5 U.S.C. § 552(a)(2)(A)-(B); see also Campaignfor-
. Accoanrabilliy, 2017 WL 4480828 at *33 (“in order to state a claim`that OLC is violating the
FOlA, CfA’s complaint needs to identify an ascertainable set of OLC opinions that plausibly

constitute the law or policy of the agency to which the opinion is addressed”) (emphasis in

 

original). 7lf that day ever comes, CREW may be entitled to those opinions, as well as an index
thereof See 5 U.S.Ci § 552(a)(2)(E). But since both the deliberative process privilege and the
attorney-client privilege preclude CREW’s requested relief under FOIA Exemption 5, 1 see no
need to rule on other potential counter-arguments, including the statutory contention that OLC
opinions are not subject to the terms of 5 U.S.C. § 552(a)(2), Mot. Dismiss 13-17, the potential
applicability of FOIA’s other eight exemptions, see 5 U.S.C. S 552(b)(1)-(9), and constitutional
concerns that requiring OLC to publish its formal, written opinions would undermine the
President’s ability to “take Care that the Laws be faithfully executed,” U.S. Const. art. 11, § 3,

l and “require the Opinion, in writing, of the principal Officer in each of the executive
Departments,” ial art. 11, _§2, cl. l. Mot. Dismiss 24-27. The complaint, as currently drafted,
fails to state a claim upon which relief can be granted.

Implicitly conceding that only some of OLC’s formal written opinions are subject to
disclosure, CREW seeks discovery to provide “a full record to evaluate the scope of DO.l’s
obligations under § 552(a)(2),” Opp. 10, arguing that “the important legal issues this suit raises
cannot be resolved until CREW has obtained limited discovery.” Opp. 3. But the possibility that
some formal written OLC opinions are subject to disclosure cannot rescue a complaint that by its_
own terms seeks all such opinions To avoid dismissal under Rule_ 12(b)(6), CREW must file a
complaint_not proposed discovery_stating a plausible claim to relief.` Iqbal, 556 U.S. at 678;
E.E.O.C. v. St. Francis Xavz'er Parochial Sch., 1 17 F.3d 621, 624 (D.C. Cir. 1997) (‘-‘l-n
determining whether a complaint fails to state a claim, we may consider only the facts alleged in
the complaint, any documents either attached to or incorporated in the complaint and matters of
which we may take judicial notice.”). Accordingly, CREW’s request for limited discovery will

be denied.

 

n IV. Conclusion
B.ecause CREW has failed to state a claim upon which relief can be granted, 1 will grant
the Government’s motion to dismiss and deny CREW’s request‘for limited discovery. In the

order that follows, CREW will be given leave to file an amended complaint, if it so desires.

   
    

  

   

` ',- l b ""

Daied: rebruary zs, 201 s ;TREvoR N. CFADDEN
United States District Judge

     

