Baker & Hostetler LLP v. United States Department of Commerce

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2006 Decided December 22, 2006

No. 05-5185

BAKER & HOSTETLER LLP,
APPELLANT

v.

UNITED STATES DEPARTMENT OF COMMERCE,
APPELLEE

Consolidated with
05-5350

Appeals from the United States District Court
for the District of Columbia
(No. 02cv02522)

Mark A. Cymrot argued the cause for appellant. With him
on the briefs were Elliot J. Feldman and Michael S. Snarr.

Claire M. Whitaker, Assistant U.S. Attorney, U.S.
Attorney’s Office, argued the cause for appellee. With her on
the brief were Kenneth L. Wainstein, U.S. Attorney at the time
the brief was filed, and Michael J. Ryan, Assistant U.S.
Attorney. R. Craig Lawrence, Assistant U.S. Attorney,
entered an appearance.
 2

Before: HENDERSON, GARLAND and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH
in which Circuit Judge GARLAND joins and Circuit Judge
HENDERSON joins as to Parts I-IV.

Opinion dissenting in part filed by Circuit Judge
HENDERSON.

KAVANAUGH, Circuit Judge: This Freedom of Information
Act appeal is a footnote to the long trade dispute in which the
United States and American softwood lumber companies have
raised complaints about alleged unfair trade practices by the
Canadian Government and Canadian softwood lumber exporters.
The United States and Canada recently settled the trade
disagreement, but this FOIA case lives on.

In 2002, the Department of Commerce imposed duties on
imports of Canadian softwood lumber to the United States
(duties that have since been rescinded as a result of the recent
bilateral settlement). Later in 2002, the law firm Baker
Hostetler, which represents Canadian softwood lumber
companies, filed requests and a lawsuit under the Freedom of
Information Act to obtain documents from the Department of
Commerce related to the Department’s investigation of
Canadian softwood lumber imports. At issue in this appeal are
17 third-party letters that the Department had received from
American lumber companies; the Department claimed FOIA
Exemption 4, which covers confidential commercial information
provided by outside parties to the Government. Also at issue are
51 sets of internal Department notes; the Department claimed
FOIA Exemption 5, which applies to privileged government
documents. The District Court concluded that the Department
properly withheld the documents under those FOIA exemptions.
 3

Applying settled legal principles to the unusual facts of this
case, we affirm the District Court’s judgment with respect to the
17 third-party letters, we affirm with respect to one of the 51
sets of notes, and we reverse and remand for further proceedings
with respect to 50 of the 51 sets of notes.

The Department has provided Baker Hostetler numerous
other softwood-lumber-related documents that are not at issue
on appeal. Because of its success in obtaining those documents,
the firm argues it is a “complainant” that “substantially
prevailed” in the overall FOIA litigation – meaning that it may
receive attorney’s fees from the Department under FOIA. See
5 U.S.C. § 552(a)(4)(E). The District Court denied Baker
Hostetler’s fee request, reasoning that the law firm is
representing itself and thus is ineligible for fees. The plain
language of the FOIA attorney’s fees provision does not contain
such an exception, however, and the Supreme Court has stated
that an organization remains eligible for attorney’s fees even
when it represents itself in litigation. See Kay v. Ehrler, 499
U.S. 432, 436 n.7 (1991). Two other Courts of Appeals have
interpreted Kay to allow fees for a law firm representing itself.
We agree with those courts and therefore reverse and remand for
further proceedings on the attorney’s fees issue; on remand, the
District Court will determine whether Baker Hostetler
“substantially prevailed” and is entitled to fees.

I

1. In the Tariff Act of 1930, Congress authorized the
Department of Commerce to investigate (i) imports to the
United States that are subsidized by foreign governments and
(ii) dumping by foreign importers, which occurs when foreign
companies sell their products in the United States at prices lower
than in other markets. Pub. L. No. 71-361, 46 Stat. 590
(codified as amended at 19 U.S.C. §§ 1202 et seq.); see 19
 4

U.S.C. §§ 1671(a), 1671a, 1673, 1673a. To counteract such
trade practices by foreign governments and companies, the
Department may impose countervailing and antidumping duties
on goods imported into the United States. Id. §§ 1671d, 1673d.
If duties are imposed, the affected foreign company may
challenge the duties by seeking judicial review in the Court of
International Trade. Id. § 1516a(a).

During the course of an investigation of subsidies to or
dumping by foreign importers, the Department must maintain a
public record of certain meetings between Department officials
and outside parties (those are known as “ex parte meetings”).
See id. § 1677f(a)(3); Department’s Br. at 10 (Act requires
Department to “create for the public record memoranda that
recount” certain ex parte meetings). If the meeting is an ex parte
meeting covered by the statute, the Department must list: the
identity of persons present at the meeting; the date, time, and
place of the meeting; and a summary of the matters discussed.
19 U.S.C. § 1677f(a)(3). By regulation, the Department keeps
this public record in its Central Records Unit. See 19 C.F.R. §
351.104(b) (2006).

In any lawsuit challenging the imposition of duties, the
Court of International Trade bases its review on the full official
record assembled during the investigation. See 19 U.S.C. §
1516a(b)(1)(B)(i), 1516a(b)(2)(A); see also 19 C.F.R. §
351.104(a)(1) (“For purposes of [19 U.S.C. § 1516a(b)(2)], the
record is the official record of each segment of the
proceeding.”). That record includes “a copy of all information
presented to or obtained by the Secretary, the administering
authority, or the [International Trade] Commission during the
course of the administrative proceeding . . . .” 19 U.S.C. §
1516a(b)(2)(A)(i). However, “[t]he confidential or privileged
status accorded to any documents, comments, or information
shall be preserved in any action” challenging an antidumping or
 5

countervailing duty determination, although “the court may
examine, in camera, the confidential or privileged material, and
may disclose such material under such terms and conditions as
it may order.” Id. § 1516a(b)(2)(B).

2. In early 2002, after an investigation, the Department of
Commerce announced its decision to impose duties on imports
of Canadian softwood lumber. The law firm Baker Hostetler,
which represents Canadian softwood lumber companies, then
submitted two Freedom of Information Act requests for a variety
of Department of Commerce documents related to the
investigation.

The Department turned over a large number of responsive
records, but it withheld some that it deemed to fall within
FOIA’s exemptions. As relevant here, the parties’ disagreement
concerned two specific groups of withheld records: 17 third-
party letters sent to the Department by a representative of
American lumber companies; and 51 sets of internal notes of
meetings between Department officials and outsiders.

As to the 17 third-party letters, the Department invoked
FOIA Exemption 4, which protects “trade secrets and
commercial or financial information obtained from a person and
privileged or confidential.” 5 U.S.C. § 552(b)(4). Baker
Hostetler argued that Exemption 4 did not apply because the
letters were not “commercial” within the meaning of FOIA. It
also maintained that the letters were not “confidential” within
the meaning of Exemption 4 because the Tariff Act requires the
Department to include letters submitted in connection with the
investigation in the official record assembled for judicial review.
See 19 U.S.C. § 1516a(b)(2)(A). The District Court determined
that the letters were properly withheld. The court concluded that
the letters contain confidential commercial information within
the meaning of Exemption 4 and were submitted in connection
 6

with bilateral trade negotiations – not in connection with the
Department’s investigation of the Canadian companies – and
thus were not subject to the Tariff Act’s official record
provision.

As to the 51 sets of meeting notes, the Department
contended that they were protected by FOIA Exemption 5,
which covers “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party . . . in
litigation with the agency.” 5 U.S.C. § 552(b)(5). That
exemption incorporates the deliberative process component of
executive privilege and protects agency documents that are pre-
decisional and deliberative. See Judicial Watch, Inc. v. FDA,
449 F.3d 141, 151 (D.C. Cir. 2006). Baker Hostetler argued,
however, that the Tariff Act’s public record requirement
mandates disclosure of certain information from the
Department’s “ex parte meetings” with outsiders and that the
meetings described in the 51 sets of notes were covered by that
statutory requirement. See 19 U.S.C. § 1677f(a)(3). The
Department responded that the meetings reflected in 50 of the 51
sets of notes were not covered by the statutory definition. In
relevant part, the District Court agreed with the Department’s
position that the meetings in question were not “ex parte
meetings” as defined by the statute; the court concluded that the
notes therefore need not be disclosed.

The Department advanced a different rationale for
withholding one set of notes taken by a senior Department
official, Bernard Carreau, during a telephone call with a U.S.
trade association. The Department argued that the Tariff Act’s
public record requirement did not apply to those notes because
the telephone call concerned the overall trade settlement
between the United States and Canada rather than the
antidumping/countervailing duty investigation. Based on its in
camera inspection of the notes, the District Court agreed and
 7

therefore concluded that the notes of the Carreau telephone call
were properly withheld.

The District Court also decided two other issues relevant to
this appeal. First, Baker Hostetler challenged the adequacy of
the Department’s search for responsive documents. The District
Court concluded that the Department acted in good faith and
conducted a reasonable search in response to Baker Hostetler’s
FOIA requests. Second, Baker Hostetler claimed that it was
entitled to recover attorney’s fees for its success in obtaining
other documents in this litigation. See 5 U.S.C. § 552(a)(4)(E).
Without reaching the statutory question whether Baker Hostetler
had “substantially prevailed” in the litigation, the District Court
concluded that the law firm was not eligible for fees because it
had represented itself.

On appeal, Baker Hostetler challenges the District Court’s
conclusions as to: the adequacy of the search; the withholding
of the 17 third-party letters and 51 sets of meeting notes; and
attorney’s fees.

II

At the outset, we consider the District Court’s jurisdiction.
Baker Hostetler filed suit under the Freedom of Information Act
and asked the court to order disclosure of certain Department of
Commerce records. The Act provides that the United States
District Court for the District of Columbia has jurisdiction over
FOIA suits. 5 U.S.C. § 552(a)(4)(B). Therefore, the District
Court had jurisdiction to decide this case, and we have
jurisdiction over the appeal under 28 U.S.C. § 1291.

We recognize that the Tariff Act grants the Court of
International Trade “exclusive jurisdiction of any civil action
commenced against the United States, its agencies, or its
 8

officers, that arises out of any law of the United States providing
for . . . administration and enforcement with respect to,” among
other things, “tariffs, duties, fees, or other taxes on the
importation of merchandise for reasons other than the raising of
revenue.” 28 U.S.C. § 1581(i)(2), (4). The Tariff Act’s
exclusive-jurisdiction provision does not apply here, however,
because this is a FOIA suit for disclosure of agency records.
Baker Hostetler’s complaint does not challenge the
Department’s “administration and enforcement” of duties. And
the mere fact that some of the requested records relate to the
Department of Commerce’s decision to impose duties does not
transform this FOIA suit for disclosure of records into a Tariff
Act suit seeking relief from duties.

III

Baker Hostetler first contends that the Department of
Commerce did not conduct an adequate search for responsive
records. A FOIA search is sufficient if the agency makes “a
good faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the
information requested.” Nation Magazine v. U.S. Customs
Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quotation marks
omitted). An agency may establish the adequacy of its search by
submitting reasonably detailed, nonconclusory affidavits
describing its efforts. See Steinberg v. Dep’t of Justice, 23 F.3d
548, 551 (D.C. Cir. 1994); Goland v. CIA, 607 F.2d 339, 352
(D.C. Cir. 1978).

In this case, the District Court concluded that the
Department conducted a sufficient search in response to Baker
Hostetler’s FOIA requests. Baker Hostetler asserts that the
Department’s failure to identify any responsive documents from
certain high-level officials demonstrates that the Department did
not perform a thorough search. But the District Court found that
 9

the Department “filed affidavits that describe in detail the
manner and method of the searches conducted.” Joint
Appendix (“J.A.”) 224. We agree with the District Court that
the Department’s procedure was reasonably calculated to
generate responsive documents. Baker Hostetler’s assertion that
an adequate search would have yielded more documents is mere
speculation. See Steinberg, 23 F.3d at 552.

Baker Hostetler also argues that the District Court
erroneously excused the Department’s failure to retrieve certain
deleted emails. But the Department adequately explained its
inability to recover those emails, and Baker Hostetler’s expert
did not rebut that explanation. See Goland, 607 F.2d at 352-55;
see also Schrecker v. Dep’t of Justice, 217 F. Supp. 2d 29, 35
(D.D.C. 2002) (“Discovery in FOIA is rare and should be denied
where an agency’s declarations are reasonably detailed,
submitted in good faith and the court is satisfied that no factual
dispute remains.”).

Finally, Baker Hostetler contends that the Department’s
alleged bad faith in responding to its FOIA requests warranted
discovery concerning the deleted emails. See Carney v. Dep’t
of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citing Goland, 607
F.2d at 355). The District Court correctly determined, however,
that Baker Hostetler offered no evidence of bad faith to justify
additional discovery. See Assassination Archives & Research
Ctr. v. CIA, 177 F. Supp. 2d 1, 8 (D.D.C. 2001) (“[A] mere
assertion of bad faith is not sufficient to overcome a motion for
summary judgment.”) (citing Hayden v. NSA, 608 F.2d 1381,
1387 (D.C. Cir. 1979)); see also SafeCard Servs., Inc. v. SEC,
926 F.2d 1197, 1200 (D.C. Cir. 1991) (district court has “broad
discretion to manage the scope of discovery” in FOIA cases).

In sum, the District Court did not err in concluding that the
Department conducted an adequate search in response to Baker
 10

Hostetler’s FOIA requests.

IV

1. Under Exemption 4, FOIA’s disclosure requirement
“does not apply to . . . commercial or financial information
obtained from a person and privileged or confidential.” 5 U.S.C.
§ 552(b)(4) (emphases added). The District Court held that the
Department need not disclose 17 third-party letters submitted to
the Department by the law firm Dewey Ballantine (on behalf of
American lumber companies) because they contain confidential
commercial information. Baker Hostetler contends that the
information in the letters is neither “commercial” nor
“confidential” under Exemption 4.

We must accept the District Court’s factual descriptions of
the contents of the letters unless the descriptions are clearly
erroneous. See Horowitz v. Peace Corps, 428 F.3d 271, 275,
277 (D.C. Cir. 2005). Furthermore, because “the agency alone
possesses knowledge of the precise content of documents
withheld, the FOIA requester and the court both must rely upon
its representations for an understanding of the material sought to
be protected.” King v. Dep’t of Justice, 830 F.2d 210, 218 (D.C.
Cir. 1987) (footnote omitted). We therefore rely on the
Department’s descriptions in its Vaughn index and
accompanying affidavit. We review de novo the District Court’s
conclusion that the letters as described fall within the FOIA
exemption. See, e.g., Spirko v. U.S. Postal Serv., 147 F.3d 992,
998 (D.C. Cir. 1998).

We first consider whether the 17 Dewey Ballantine letters
contain commercial information within the meaning of
Exemption 4. Contrary to Baker Hostetler’s suggestion,
Exemption 4 is not confined only to records that “reveal basic
commercial operations . . . or relate to the income-producing
 11

aspects of a business.” Pub. Citizen Health Research Group v.
FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983). The exemption
reaches more broadly and applies (among other situations) when
the provider of the information has a commercial interest in the
information submitted to the agency. See Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 38-39 (D.C. Cir. 2002). In
Critical Mass Energy Project v. Nuclear Regulatory
Commission, for example, we held that a non-profit
organization’s reports describing the operations of its members’
nuclear power plants contained “commercial” information. 830
F.2d 278, 281 (D.C. Cir. 1987). We stated that the “commercial
fortunes” of member utilities “could be materially affected by
the disclosure of health and safety problems experienced during
the operation of nuclear power facilities.” Id. We reached a
similar result in Public Citizen Health Research Group v. FDA.
We determined that lens manufacturers had a “commercial
interest” in health and safety data submitted to the FDA because
the data would be “instrumental in gaining marketing approval
for their products.” 704 F.2d at 1290.

In this case, according to the Department’s general
summary of withheld documents (the Vaughn index), the 17
third-party letters contain “information that the submitter has
voluntarily made available in confidence to the U.S.
Government in connection with negotiations of a long-term
agreement to resolve the trade dispute over softwood lumber and
which is commercial and financial in nature.” J.A. 277. The
letters include “information about the domestic industry’s
commercial concerns,” and they “reflect the commercial
strengths and challenges faced by U.S. lumber companies in
general, even outside the context of the negotiations.” Id. Each
letter contains at least one of the following: the association’s
assessment of the commercial strengths and weaknesses of the
U.S. lumber industry; recommendations for settling or
facilitating negotiations pertaining to the U.S. trade dispute with
 12

Canada; an analysis of the effect such measures would have on
the commercial activities and competitive position of domestic
lumber companies; the U.S. lumber industry’s requirements for
achieving a competitive softwood lumber market; the U.S.
lumber industry’s views regarding the status of negotiations
between the United States and Canada; or a description of the
competitive challenges that domestic lumber companies face.

Under this Court’s precedents construing Exemption 4, U.S.
lumber companies have a “commercial interest” in such letters:
The letters describe favorable market conditions for domestic
companies, and their disclosure would help rivals to identify and
exploit those companies’ competitive weaknesses. See Critical
Mass Energy Project, 830 F.2d at 281; Pub. Citizen Health
Research Group, 704 F.2d at 1290. Therefore, the 17 third-
party letters plainly contain commercial information within the
meaning of Exemption 4.

We next consider whether the 17 letters are confidential
under Exemption 4. When information is submitted to the
Department voluntarily, “it will be treated as confidential under
Exemption 4 if it is of a kind that the provider would not
customarily make available to the public.” Critical Mass
Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871,
872 (D.C. Cir. 1992) (en banc).

It is undisputed that Dewey Ballantine voluntarily submitted
the letters and ordinarily would not have made the letters
available to the public. Baker Hostetler claims, however, that
the letters are not confidential because the Tariff Act requires
that they be included within the official record of the
Department’s investigation for purposes of litigation challenging
the duties. See 19 U.S.C. § 1516a(b)(2)(A)(i) (providing that the
record for judicial review shall consist of “a copy of all
information presented to or obtained by the Secretary, the
 13

administering authority, or the Commission during the course of
the administrative proceeding, including all governmental
memoranda pertaining to the case and the record of ex parte
meetings required to be kept by [19 U.S.C. § 1677f(a)(3)]”).
Baker Hostetler further assumes that the official record must be
fully public.

Baker Hostetler’s argument as to the confidentiality of the
17 letters fails for two independent reasons: First, the premise
of Baker Hostetler’s argument is wrong because the 17 third-
party letters were not required to be included in the official
record of this antidumping/countervailing duty investigation.
After reviewing the letters, the District Court determined that
they were submitted not in connection with the
antidumping/countervailing duty investigation, but rather “to
advance the [U.S. lumber industry’s] positions on the terms of
an overall settlement of an ongoing dispute between the U.S.
and Canada on the importation of softwood lumber.” J.A. 353.

Baker Hostetler claims that any distinction between trade
negotiations and an antidumping/countervailing duty
investigation is illusory. But Baker Hostetler’s argument
ignores the text and structure of the Tariff Act, which
distinguishes trade negotiations from antidumping/
countervailing duty investigations. Compare 19 U.S.C. § 1516a
(governing “[j]udicial review in countervailing duty and
antidumping duty proceedings”) with id. § 2155(g) (addressing
when information “submitted in confidence by the private sector
or non-Federal government to officers or employees of the
United States in connection with trade negotiations,” including
confidential “commercial or financial information,” can be
disclosed to certain Department officials). The statutory
distinction between trade negotiations and antidumping/
countervailing duty proceedings is consistent, moreover, with
how trade negotiations and antidumping/countervailing duty
 14

investigations generally occur. When the United States
negotiates a trade agreement, it commonly works in concert with
American industries and seeks input about how a possible
agreement would affect them. The line between trade
negotiations and an antidumping/countervailing duty
investigation reflects the reality that American industries are
likely to provide input (such as the 17 letters here) in connection
with trade negotiations while an antidumping/countervailing
duty investigation is also occurring. See Seventh Declaration of
Maria Dybczak ¶¶ 15-18 (J.A. 292-93).

Second, Baker Hostetler’s argument as to a lack of
confidentiality fails for a separate reason as well. The firm
relies on the Tariff Act’s official record requirement (which
applies in judicial proceedings challenging the imposition of
duties), but that provision has an exception that protects
“confidential” material from routine disclosure. See 19 U.S.C.
§ 1516a(b)(2)(B); see also 19 C.F.R. § 351.104; A. Hirsh, Inc.
v. United States, 657 F. Supp. 1297, 1302 (Ct. Int’l Trade 1987)
(analogizing § 1516a(b) to other statutes that protect confidential
commercial information, including FOIA Exemption 4, and
explaining that “[r]elease of such materials to an adversary,
whether or not under protective order, can seriously discourage
parties from disclosing confidential information in the future”).
Baker Hostetler’s submission here boils down to a suggestion
that a statute (the Tariff Act) that protects “confidential”
material somehow overrides FOIA’s protection of “confidential”
material. That is not a winning argument – and on that
independent ground as well, we reject Baker Hostetler’s
argument that the Tariff Act’s official record requirement
trumps the confidentiality of the 17 letters.

2. We turn next to the dispute over the 50 sets of meeting
notes that the District Court found to be protected under FOIA
Exemption 5 (there is a 51st set of notes we will consider
 15

separately in the next section). Exemption 5 protects from
disclosure “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party . . . in
litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption
5 incorporates the traditional privileges that the Government
could assert in civil litigation against a private litigant. Those
include, for example, the government attorney-client privilege,
the government attorney work product protection, the
presidential communications privilege, the state secrets
privilege, and the deliberative process privilege. See Judicial
Watch, Inc. v. Dep’t. of Justice, 365 F.3d 1108, 1109, 1113-14
(D.C. Cir. 2004); Burka v. Dep’t of Health & Human Servs., 87
F.3d 508, 516 (D.C. Cir. 1996).

This case involves the deliberative process privilege, which
“protects agency documents that are both predecisional and
deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151
(D.C. Cir. 2006). As a general matter, notes taken by
government officials often fall within the deliberative process
privilege. See Coastal States Gas Corp. v. Dep’t of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980) (the deliberative process
privilege covers “subjective documents which reflect the
personal opinions of the writer rather than the policy of the
agency”). Notes generally are selective and deliberative – and
routine public disclosure of meeting notes and other notes would
hinder government officials from debating issues internally,
deter them from giving candid advice, and lower the overall
quality of the government decisionmaking process. See, e.g.,
Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 13 (D.D.C.
1995) (“Disclosure of this type of deliberative material inhibits
open debate and discussion, and has a chilling effect on the free
exchange of ideas.”); cf. Bureau of Nat’l Affairs, Inc. v. Dep’t of
Justice, 742 F.2d 1484, 1494 (D.C. Cir. 1984) (recognizing
possibility that notes might be withheld under Exemption 5
because of “the potential chilling effect that disclosure of
 16

handwritten notes might have on the activities of government
employees”).

On appeal, Baker Hostetler does not dispute that the 50 sets
of notes are pre-decisional and deliberative, and ordinarily
would be protected under the deliberative process privilege.
Baker Hostetler instead argues that the Tariff Act requires public
documentation of those ex parte meetings in the public record.
The Department has not taken issue with this premise – namely,
that the Department must disclose certain information contained
in meeting notes to the extent the Tariff Act’s public record
requirement applies to these meetings. (There has been no
suggestion, moreover, that the general public record
requirement of Tariff Act § 1677f(a)(3) somehow could be
affected or limited by § 1516a(b)(2)(B)’s protection for
otherwise privileged materials in judicial proceedings
challenging the imposition of duties. The Department has flatly
stated that the record required by § 1677f(a)(3) is a “public
record.” Department’s Br. at 10 (emphasis added).) Throughout
this FOIA litigation, the Department has turned over information
covered by the public record provision of the Tariff Act,
regardless whether such information otherwise might have been
protected under the deliberative process privilege. See, e.g., J.A.
246 (District Court’s unchallenged order directing the
Department to disclose matters discussed and persons in
attendance at meetings); Department’s Br. at 14 (Department
“went beyond the [District Court’s] order . . . and voluntarily
disclosed information from all meetings concerning the
administrative proceedings in the AD/CVD investigation, which
included certain contacts that [the Department] did not consider
subject to the Tariff Act’s ex parte memorialization
requirement”); Department’s Br. at 17 (Department “has
provided such information as the dates, names of participants,
and the topics discussed during contacts on the AD/CVD
proceedings”); Eighth Declaration of Maria Dybczak ¶ 7 (J.A.
 17

297-98) (Department “provided the information ordered [by the
District Court] with respect to all meetings that could be
described as pertaining to a[n] ex parte meeting as the agency
interprets that requirement”); Def.’s Reply to Pl.’s Resp. to
Def.’s Report to the Court on the Number of Ex Parte Contacts
that are Being Withheld Because They are Not Subject to the
Tariff Act (January 25, 2005) at 2 (Department has provided
information on “all [ex parte] meetings and contacts identified
in the notes of agency employees”).

The ultimate dispute between the parties with respect to the
50 sets of meeting notes is therefore quite narrow: Are the
meetings in question covered by the Tariff Act’s public record
requirement for ex parte meetings? The Department argues (and
the District Court agreed) that the meetings are not covered
because the Tariff Act’s public record requirement applies only
to meetings between (i) outside “interested parties” and (ii)
Department “decision makers.” The problem for the
Department is that its interpretation is inconsistent with the plain
language of the statute, which provides:

The administering authority and the Commission shall
maintain a record of any ex parte meeting between–

(A) interested parties or other persons providing
factual information in connection with a proceeding,
and

(B) the person charged with making the
determination, or any person charged with making a
final recommendation to that person, in connection
with that proceeding,

if information relating to that proceeding was
presented or discussed at such meeting. The record
 18

of such an ex parte meeting shall include the identity
of the persons present at the meeting, the date, time,
and place of the meeting, and a summary of the
matters discussed or submitted.

19 U.S.C. § 1677f(a)(3). As this statutory language makes clear
(and contrary to the Department’s argument), the public record
requirement for ex parte meetings is not limited to meetings
between outside interested parties and Department “decision
makers.” Rather, the requirement applies to meetings between:
(i) interested parties or other persons providing factual
information in connection with a proceeding, and (ii) the person
charged with making the determination, or any person charged
with making a final recommendation to that person.

In assessing the 50 sets of meeting notes, the District Court
did not apply the definition in the statutory text; it instead
accepted the narrower definition advanced by the Department.
We therefore must reverse and remand for further proceedings
with respect to the 50 sets of meeting notes. On remand, the
District Court first should determine which of the meetings
reflected in the 50 sets of notes are covered ex parte meetings
under the statutory definition. In that regard, we point out that
although the Department’s interpretation of the statute is too
narrow, Baker Hostetler’s interpretation of the statute is too
broad. Baker Hostetler argues that the Act “requires Commerce
to disclose ex parte meetings with staff,” Baker Hostetler’s Br.
at 38 (emphasis added), regardless whether the staff member
meets the statutory definition of “the person charged with
making the determination, or any person charged with making
a final recommendation to that person,” 19 U.S.C. §
1677f(a)(3)(B). Baker Hostetler’s interpretation is overinclusive.
On remand, the District Court should adhere to the plain terms
of the statutory language in determining which meetings are
covered.
 19

For any meeting that the District Court finds to be covered
by the public record requirement, the court then should
determine which parts of the notes from those meetings must be
disclosed. As it has done throughout this litigation with respect
to other notes, the District Court should order the Department to
disclose only those portions of the notes from covered meetings
that reflect the identity of persons present or the date, time, or
place of the meeting. Cf. 5 U.S.C. § 552(b) (agency must
disclose “reasonably segregable” portions of a requested record
“after deletion of the portions which are exempt”); Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152
(1980) (“[FOIA] does not obligate agencies to create or retain
documents; it only obligates them to provide access to those
which it in fact has created and retained.”).

The Tariff Act’s public record requirement also directs the
Department to prepare a “summary of the matters discussed”
during a covered meeting. 19 U.S.C. § 1677f(a)(3). Of course,
the Department is not required to create such records in this
FOIA suit. See Kissinger, 445 U.S. at 152. And it is not at all
clear whether any portion of meeting notes would qualify as a
“summary of the matters discussed” as contemplated by the
Tariff Act. Throughout this litigation, so as to avoid any delay
as a result of this question, the Department has agreed to
disclose “the topics discussed” at covered meetings. See
Department’s Br. at 17 (noting that the Department “has
provided such information as . . . the topics discussed during
contacts on the AD/CVD proceedings”); J.A. 306-328, 312
(Department’s Second Amended Vaughn Index, summarizing
“contacts with outside persons, whether under the Tariff Act or
not, and the topics discussed”). The parties have not suggested
that the District Court follow a different practice on remand with
respect to any additional covered meetings, and the District
Court may continue to take that same approach.
 20

3. One set of meeting notes raises a different issue. Those
are the notes taken by Department of Commerce official
Bernard Carreau during his telephone conversation with a trade
association representing U.S. lumber companies. The public
record requirement covers meetings in which a person provides
a Department official “factual information in connection with a
proceeding.” 19 U.S.C. § 1677f(a)(3)(A) (emphasis added).
Based on its in camera review, the District Court found that
these notes did not concern the antidumping/countervailing duty
proceeding. Because we have no reason to question that factual
description, we conclude that the notes of the telephone call
were not covered by the public record requirement. We
therefore affirm the District Court’s decision that the notes of
the Carreau meeting were properly withheld under FOIA
Exemption 5.

V

Like many other federal statutes, the Freedom of
Information Act provides that “[t]he court may assess against
the United States reasonable attorney fees and other litigation
costs reasonably incurred in any case under this section in which
the complainant has substantially prevailed.” 5 U.S.C. §
552(a)(4)(E). After Baker Hostetler filed suit in this case, the
Department produced (in full or redacted form) numerous
responsive documents in accordance with the District Court’s
orders. As a result, Baker Hostetler contends it is a
“complainant” that has “substantially prevailed” in the FOIA
litigation (and therefore may receive attorney’s fees). The
District Court ruled, however, that Baker Hostetler is not
eligible for attorney’s fees because the firm represented itself in
the litigation.

We conclude that Baker Hostetler is eligible for attorney’s
fees because of (i) the plain text of the statute and (ii) the
 21

Supreme Court’s decision in Kay v. Ehrler, 499 U.S. 432 (1991),
particularly footnote 7 of that opinion. We note, moreover, that
the two other Court of Appeals panels to consider the issue after
Kay each unanimously concluded that a law firm representing
itself is eligible for attorney’s fees.

By its terms, FOIA’s fees provision applies to all
“complainants” who have “substantially prevailed.” The
statutory text contains no exception for a law firm that
represents itself. In interpreting attorney’s fees provisions, as in
construing other statutes, courts must adhere to the plain text.
See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct.
2455, 2459 (2006); Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004);
W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991);
Zerilli v. Evening News Ass’n, 628 F.2d 217, 220 (D.C. Cir.
1980). Under the plain language of § 552(a)(4)(E), Baker
Hostetler is a “complainant” and may receive attorney’s fees if
it substantially prevailed.

The Department correctly points out, however, that the
Supreme Court and this Court have carved out a narrow
exception to attorney’s fee statutes when individual plaintiffs
represent themselves. See, e.g., Kay, 499 U.S. at 437-38; Burka
v. Dep’t of Health & Human Servs., 142 F.3d 1286 (D.C. Cir.
1998). In Kay, the Supreme Court held that an individual
attorney representing himself could not recover attorney’s fees
under 42 U.S.C. § 1988, the attorney’s fees provision for certain
civil rights suits. 499 U.S. at 437-38. The Court reasoned that
“the word ‘attorney’ assumes an agency relationship, and it
seems likely that Congress contemplated an attorney-client
relationship as the predicate for an award under § 1988.” Id. at
435-36 (footnote omitted). The attorney’s fees provision was
designed, moreover, to “enable potential plaintiffs to obtain the
assistance of competent counsel in vindicating their rights.” Id.
at 436. Congress wanted to “ensur[e] the effective prosecution
 22

of meritorious claims,” which is more likely when litigation
decisions are informed by “the judgment of an independent third
party.” Id. at 437.

In Kay, the Supreme Court made crystal clear, however, that
the exception for individual plaintiffs who represent themselves
does not apply to organizations:

Petitioner argues that because Congress intended
organizations to receive an attorney’s fee even when
they represented themselves, an individual attorney
should also be permitted to receive an attorney’s fee
even when he represents himself. However, an
organization is not comparable to a pro se litigant
because the organization is always represented by
counsel, whether in-house or pro bono, and thus, there
is always an attorney-client relationship.

Id. at 436 n.7. In explaining that organizations may recover fees
when represented by in-house counsel, the Supreme Court did
not distinguish between law firms and other types of
organizations. Nor can we see any principled basis for making
such a distinction. Footnote 7 suggests that an in-house counsel
for a corporation is sufficiently independent to ensure effective
prosecution of claims, thus justifying fees. An attorney who
works for a law firm certainly is no less independent than an
attorney who works for a corporation. Therefore, it would make
little sense to slice and dice Kay’s conclusion regarding
“organizations” and apply footnote 7 to some organizations but
not others.

This Court relied on Kay in holding that individual plaintiffs
representing themselves could not obtain attorney’s fees under
FOIA. Burka, 142 F.3d at 1288-92. Because the Burka case
involved an individual plaintiff, we had no occasion to address
 23

footnote 7 of Kay and the Supreme Court’s distinction between
individual and organizational litigants.

Since Kay, two Courts of Appeals – the Fourth Circuit and
the Fifth Circuit – have considered the application of attorney’s
fees statutes to law firms that represent themselves. Both courts
persuasively relied on footnote 7 of Kay in holding that law
firms are eligible for fees in such cases. In Bond v. Blum, two
law firms that represented themselves in a copyright case sought
attorney’s fees under 17 U.S.C. § 505. 317 F.3d 385, 398 (4th
Cir. 2003). Relying on footnote 7 of Kay, the Court of Appeals
concluded that the rule against individual attorney-litigants
recovering fees does not apply “in circumstances where entities
represent themselves through in-house or pro bono counsel.” Id.
at 399 (emphasis added). An attorney-client relationship exists,
the court reasoned, when “a member of an entity who is also an
attorney represents the entity.” Id. at 400. Although such a
member is “interested in the affairs of the entity, he would not
be so emotionally involved in the issues of the case so as to
distort the rationality and competence that comes from
independent representation.” Id. The law firm “still remains a
business and professional entity distinct from its members, and
the member representing the firm as an entity represents the
firm’s distinct interests in the agency relationship inherent in the
attorney-client relationship.” Id. The Fifth Circuit similarly
relied on footnote 7 of Kay and reached the same conclusion.
See Gold, Weems, Bruser, Sues & Rundell v. Metal Sales Mfg.
Corp., 236 F.3d 214, 218-19 (5th Cir. 2000) (holding that law
firm that represented itself could recovery attorney’s fees under
state statute in diversity case). As a result of our decision today,
the three Courts of Appeals that have considered the question
have all concluded that a law firm representing itself in litigation
may receive attorney’s fees.

To sum up on the fees issue: There are policy arguments for
 24

and against statutes that award attorney’s fees to prevailing
parties (the English rule), as well as statutes with one-way fee-
shifting provisions such as the FOIA fees provision. Our task,
however, is to interpret the statute as passed by Congress and
construed by the Supreme Court. Baker Hostetler is a
“complainant” eligible for fees under the plain text of the FOIA
fees provision. The Supreme Court has made clear, moreover,
that the exception to fees statutes for individual litigants who
represent themselves does not extend to organizational litigants
such as Baker Hostetler. Two Courts of Appeals have applied
this Supreme Court precedent and held that a law firm that
represents itself remains eligible for attorney’s fees. We agree
with those Courts of Appeals. We reverse and remand on the
attorney’s fees issue so that the District Court can determine
whether Baker Hostetler “substantially prevailed” for purposes
of the FOIA attorney’s fees statute and is entitled to fees.

VI

We affirm the District Court’s judgment with respect to the
adequacy of the search, the 17 third-party letters exempt from
disclosure under 5 U.S.C. § 552(b)(4), and the Carreau notes.
We reverse and remand for further proceedings with respect to
the 50 sets of meeting notes withheld under 5 U.S.C. § 552(b)(5)
and the attorney’s fees determination.

So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting in part:
While I fully concur in Parts I–IV of the majority opinion,
I disagree with the majority’s conclusion that the United States
Supreme Court’s footnote observation in Kay v. Ehrler, 499 U.S.
432, 436 n.7 (1991), can—or should—be stretched to permit a
law firm litigant acting through its member lawyers to collect
attorney’s fees under FOIA’s fee-shifting provisions.
In Kay, the Supreme Court extended the general principle
that a pro se litigant is not entitled to attorney’s fees under a
similar fee-shifting provision to include a lawyer-litigant
appearing pro se. See 499 U.S. at 437–38. The Court determined
that the overriding purpose of the fee-shifting provision of 42
U.S.C. § 1988 is to ensure the retention of “independent
counsel” and a bona fide attorney-client relationship capable of
promoting “effective prosecution of meritorious claims.” Id. at
437. That purpose applies equally to a lawyer proceeding pro se
as to a layman. Id. As the Court noted, “[e]ven a skilled lawyer
who represents himself is at a disadvantage in contested
litigation” because “[h]e is deprived of the judgment of an
independent third party in framing the theory of the case,
evaluating alternative methods of presenting the evidence, cross-
examining hostile witnesses, formulating legal arguments, and
in making sure that reason, rather than emotion, dictates the
proper tactical response to unforseen developments.” Id. Further,
“[e]thical considerations may make it inappropriate for [a lawyer
proceeding pro se] to appear as a witness.” Id.
Although Kay decided only the attorney’s fee issue for a pro
se lawyer-litigant, in a footnote the Court rejected the plaintiff’s
attempt to analogize his situation to the “organizations
[Congress intended] to receive an attorney’s fee even when they
represented themselves” by noting that “an organization is not
comparable to a pro se litigant because the organization is
always represented by counsel, whether in-house or pro bono,
and thus, there is always an attorney-client relationship.” Id. at
 2

436 n.7. The Court said nothing to indicate what type of
“organization” it meant except to describe its legal
representative as either in-house or unpaid. Id. This type of legal
representation does not immediately bring to mind a law firm
“organization,” at least not the Court’s specification of a pro
bono lawyer.1 And even the “in-house counsel” referenced in
footnote 7 means either corporate counsel or public sector
lawyers employed in state attorney’s offices more naturally than
it does members of a law firm. See, e.g., Wisconsin v. Hotline
Indus., Inc., 236 F.3d 363 (7th Cir. 2000) (State’s attorney
awarded attorney’s fees for representing State under removal
statute (28 U.S.C. § 1447(c))).
Nevertheless, using this “slim reed” dictum and disregarding
the reasoning underlying the Kay holding, the majority construes
the generic “organization” of Kay’s footnote 7 to include a law
firm. Maj. Op. at 21–22.2 Indeed, the majority goes further than

1
An organization represented by “pro bono counsel,” at least
in my experience, refers to a public interest or other non-profit
organization, not a law firm.
2
The majority relies on the post-Kay decisions of two other
courts of appeals. See Bond v. Blum, 317 F.3d 385, 398 (4th Cir.
2003); Gold, Weems, Bruser, Sues & Rundell v. Metal Sales Mfg.
Corp., 236 F.3d 214, 218–19 (5th Cir. 2000). Although both circuits
concluded that a law firm constitutes an organization within the
meaning of Kay’s footnote 7, each proceeded more tentatively than the
majority suggests. See Maj. Op. at 22–23. In Blum the Fourth Circuit
recognized that “representation of a law firm by one of its members
presents an increased risk of emotional involvement and loss of
independence” but awarded attorney’s fees because the record gave
“no indication” of compromised independence. 317 F.3d at 400. The
Fifth Circuit’s invocation of Kay in Metal Sales Mfg. was even more
conditional. The case involved a Louisiana statute under which the
 3

the Supreme Court’s description of an “organization” by
concluding that “[a]n attorney-client relationship exists . . . when
‘a member of an entity who is also an attorney represents the
entity.’ ” Maj. Op. at 22 (quoting Bond v. Blum, 317 F.3d 385,
400 (4th Cir. 2003)) (emphasis added). Because “[t]he law firm
‘still remains a business and professional entity distinct from its
members, . . . the member representing the firm as an entity
represents the firm’s distinct interests in the agency relationship
inherent in the attorney-client relationship.’ ” Id. at 23 (quoting
Blum, 317 F.3d at 400) (emphasis added).
The majority’s reasoning thus reduces to the following: (1)
a law firm constitutes an entity with a legal identity distinct from
its members; (2) an entity with a separate identity comes within
the minimal description of “organizations . . . represent[ing]
themselves” in Kay’s footnote dictum, see Kay, 499 U.S. at 436
n.7; and, therefore, (3) a law firm constitutes an organization
eligible for attorney’s fees even when it is represented by its
members. Yet Kay’s observation regarding “organizations” is
not based simply on the distinction between an entity and an
individual. Instead, Kay’s emphasis on independent judgment
and ethical considerations in holding lawyer-litigants barred
from attorney’s fees is wholly ignored by the majority.3

Louisiana state courts had in the past permitted attorney’s fees awards
to lawyers proceeding pro se. See 236 F.3d at 218; Hoskins v. Ziegler,
506 So.2d 146 (La. Ct. App. 1987). The Fifth Circuit noted Kay’s
applicability only “if the Louisiana Open Account Statute were
construed to require both a lawyer and a client.” Id. at 219.
3
Moreover, the majority fails to consider the implications of
basing its reasoning on the separate identities of law firms as entities
and its member lawyers as individuals. Under the majority’s reading
of Kay need an individual lawyer simply incorporate himself in order
 4

Not only does the majority stretch Kay’s dictum past its
breaking point but, in my view, it strays from our own
precedent. In Burka v. U.S. Dep’t of Health & Human Servs.,
142 F.3d 1286 (D.C. Cir. 1998), we interpreted Kay, stressing
the necessity of independent legal judgment, to deny attorney’s
fees not only to the lawyer-litigant but also to his law firm
colleagues for their legal services rendered in a FOIA action.
See 142 F.3d at 1291–92. Acknowledging an earlier case
awarding fees to a lawyer-litigant for the work of co-counsel,
see Lawrence v. Bowsher, 931 F.2d 1579 (D.C. Cir. 1991), we
distinguished it based on the fact that co-counsel there were not
“affiliated with the litigant’s law practice.” Burka, 142 F.3d at
1291. With no affiliation, as in Lawrence, we found the
“independent counsel” that Kay emphasized. Id.; see also
Lawrence, 931 F.2d at 1579. Relying on Kay, we then noted that
the agency relationship which “ ‘the word attorney assumes’ . .
. does not exist . . . where the counsel are simply colleagues at
the litigant’s law firm working under the litigant’s
direction.”Burka, 142 F.3d at 1291 (quoting Kay, 499 U.S. at
435). Thus, because the lawyer-litigant controlled legal strategy
and the presentation of evidence and co-counsel were not
“independent counsel hired by him to assist him,” no genuine
attorney-client relationship existed and attorney’s fees were
unavailable. Id. (emphasis added).

to be eligible for attorney’s fees? And what of the sole practitioner
with a “firm” identity formally separate from himself as an individual?
In addition, the majority fails to address an inconsistency in its
reliance on Kay: At the same time it splits the law firm entity from its
members, it does so relying on the Supreme Court’s description of
organizations “represent[ing] themselves.” Kay, 499 U.S. at 436 n.7
(emphasis added).
 5

In practice, there is no difference between Burka’s co-
counsel working for, and under the direction of, their law firm
colleague and Baker & Hostetler’s members’ representation of
all of their affiliated partners, that is, the law firm itself. Burka’s
denial of fees for the work of co-counsel working “in the same
firm” as the individual lawyer-litigant applies equally to lawyers
who constitute “the same firm.” See id. at 1292. Just as Burka
directed his affiliated co-counsel, Baker & Hostetler controlled
and directed its quest for attorney’s fees through its member
lawyers, presumably acting as “the final filter,” Kooritzky v.
Herman, 178 F.3d 1315, 1324 (D.C. Cir. 1999), for litigation
decisions.
Absent the “detached perspective” that comes from
independent counsel, a law firm as an entity—as much as a
lawyer-litigant—may have an interest in bringing suit if a fee-
shifting statute is in effect “solely as a way to generate fees
rather than to vindicate personal claims.” Falcone v. IRS, 714
F.2d 646, 648 (6th Cir. 1983) (“We do not believe that Congress
intended to so subsidize attorneys without clients.”).4 Moreover,
in light of Kay’s focus upon independent legal judgment, a “rule
that authorizes awards of counsel fees to pro se litigants . . . who
are members of the bar—would create a disincentive to employ
counsel whenever such a plaintiff considered himself competent
to litigate on his own behalf.” Kay, 499 U.S. at 438; cf. Blum,
317 F.3d at 400. Finally, it is possible, if not likely, that the firm
members representing Baker & Hostetler in the FOIA action
may be witnesses in seeking attorney’s fees, thereby implicating
the ethical concerns voiced in Kay. See 499 U.S. at 437.

4
While the Court in Kay did not use Falcone’s interest
analysis, the Court described Falcone as requiring the same “detached
and objective perspective” that it found lacking in Kay. Compare Kay,
499 U.S. at 434 n.4 (quoting Falcone, 714 F.2d at 647) with id. at 437.
 6

The Supreme Court recently reaffirmed, in a different
context, the decision of a sister circuit “to err on the side of
caution” when facing “imprecision in [the Court’s] prior cases”
by “neither forc[ing] . . . nor bur[ying] the issue” but instead by
“follow[ing] [the Court’s precise holding] until expressly
overruled by the Supreme Court,” even if the holding has since
been undermined by intervening precedent. Eberhart v. United
States, 126 S.Ct. 403, 404, 407 (2005) (noting tension between
Court’s earlier holding that filing deadlines are “jurisdictional”
and intervening precedent finding other time prescriptions non-
jurisdictional). Such caution is even more apt here. See Rush
Prudential HMO, Inc. v. Moran, 536 U.S. 355, 377 (2002)
(declining “to turn dictum into holding”); U.S. Bancorp
Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 24 (1994)
(“invoking our customary refusal to be bound by dicta”). Rather
than relying on Kay’s footnote dictum to “force” a holding that
a law firm litigant is eligible for attorney’s fees under FOIA
based on its members’ work, I would follow Circuit
precedent—as well as the holding in Kay—and find Baker &
Hostetler ineligible for attorney’s fees under FOIA.
Accordingly, I respectfully dissent from Part V of the majority
opinion.
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Issued December 22, 2006

No. 05-5185

BAKER & HOSTETLER LLP,
APPELLANT

v.

UNITED STATES DEPARTMENT OF COMMERCE,
APPELLEE

Consolidated with
05-5350

On Motion for Recusal

KAVANAUGH, Circuit Judge: Appellant Baker Hostetler
submitted a motion requesting my recusal under the federal
recusal statute if, in my prior work for President George W.
Bush, I “personally participated on issues relating to the
Softwood Lumber dispute between the United States and
Canada.” Mot. at 2; see 28 U.S.C. § 455. I denied the motion
because recusal is not supported by or appropriate under either
the specific provisions of § 455(b) or the general provision of
§ 455(a).

In this Freedom of Information Act litigation, Baker
Hostetler seeks certain documents relating to the Department of
 2

Commerce’s investigation of Canadian softwood lumber
imports. The Department imposed duties on Canadian softwood
lumber in early 2002. Later that year, Baker Hostetler filed two
FOIA requests for Department documents. With respect to the
documents that are at issue in this appeal, the Department
claimed FOIA exemptions 4 and 5. See 5 U.S.C. § 552(b)(4)-
(5). The District Court granted summary judgment to the
Department. On appeal, Baker Hostetler has challenged the
District Court’s decision not to order disclosure of those
documents and has moved for my recusal.

Section 455(b)(3) of Title 28 is the provision of federal law
that specifically addresses the recusal of federal judges who
formerly served in government. The statute requires recusal
when a judge “has served in governmental employment and in
such capacity participated as counsel, adviser or material
witness concerning the proceeding or expressed an opinion
concerning the merits of the particular case in controversy.” 28
U.S.C. § 455(b)(3). A “proceeding” is defined to include
“pretrial, trial, appellate review, or other stages of litigation.”
28 U.S.C. § 455(d)(1).

During my service in the Executive Branch, I did not
participate in any stage of this Baker Hostetler litigation, nor did
I express an opinion concerning the merits. Therefore,
§ 455(b)(3) does not support my recusal in this case.

Baker Hostetler also cites the requirement under
§ 455(b)(1) that a judge recuse if he has “personal knowledge of
disputed evidentiary facts concerning the proceeding.” Mot. at
4. The questions in the Baker Hostetler case focus on whether
particular Department of Commerce documents fall within
certain FOIA exemptions. While serving in the Executive
Branch, I did not obtain personal knowledge of any disputed
evidentiary facts in this FOIA case.
 3

Section 455(a)’s general “catch-all” provision requires
recusal when a judge’s “impartiality might reasonably be
questioned.” That section covers situations not addressed by
§ 455(b) that nonetheless might be appropriate for recusal. In
§ 455(b)(3), however, Congress clearly and specifically
addressed the effect of prior government service on a judge’s
recusal obligations. Before enacting that law in 1974, Congress
carefully studied the issue, including obtaining guidance from
the then-recently amended ABA Code of Judicial Conduct. See
H.R. Rep. No. 93-1453 (1974), as reprinted in 1974
U.S.C.C.A.N. 6351. In the statute, Congress chose to draw the
recusal line for prior government employment at participation in
the proceeding or expression of an opinion concerning the
merits of the particular case in controversy. It bears emphasis,
moreover, that Congress chose the “personal-participation” rule
for recusal based on prior government employment while
simultaneously enacting a different and far broader
“associational” rule for recusal based on prior law firm
employment. See 28 U.S.C. § 455(b)(2).

As to prior government work, Congress was aware of the
deeply rooted tradition of high-level Executive Branch and
Legislative Branch officials assuming the bench. Based on that
history and to avoid making it all but impossible for judges with
such backgrounds to perform their judicial duties in many cases,
Congress established the specific “personal-participation” rule
in § 455(b)(3). In determining whether recusal is appropriate or
inappropriate based on prior government employment, judges
must respect the line drawn by Congress.

To be sure, Congress could not foresee every conceivable
recusal scenario that might occur. Therefore, rare and
extraordinary circumstances arising out of prior government
employment – but not covered or envisioned by § 455(b)(3) –
 4

conceivably could occur and support recusal under § 455(a).
Even so, this case is not such an extraordinary situation.

Baker Hostetler also contends that I should recuse if I
provided policy advice to the President on the softwood lumber
issue. Mot. at 3. Even if the factual premise of this claim were
accurate, it would not provide a basis for recusal: Consistent
with the line drawn by Congress in § 455(b)(3), judges who
previously participated in policy matters and provided policy
advice in government do not ordinarily recuse in litigation
involving those policy issues. That principle was exemplified
recently by Justice Breyer’s participation in consideration of the
constitutionality of the Sentencing Guidelines after serving as a
member of the Sentencing Commission that helped draft the
Guidelines. See United States v. Booker, 543 U.S. 220 (2005);
see also Laird v. Tatum, 409 U.S. 824, 839 (1972) (Rehnquist,
J.) (declining to recuse); id. at 831 (“[N]one of the former
Justices of this Court since 1911 have followed a practice of
disqualifying themselves in cases involving points of law with
respect to which they had . . . formulated policy prior to
ascending to the bench.”); id. (describing how Justice Black sat
on cases assessing the constitutionality of the Fair Labor
Standards Act after being one of its principal authors while a
Senator); id. at 831-32 (describing how Justice Frankfurter sat
on a case interpreting the scope of the Norris-LaGuardia Act
after playing an important role in drafting it); id. at 832
(describing how Chief Justice Vinson sat on cases involving
legislation he helped draft while in the House of
Representatives); cf. Carter v. West Publ’g Co., No. 99-11959-
EE, 1999 WL 994997, at *9 (11th Cir. Nov. 1, 1999) (Tjoflat, J.)
(“Courts have uniformly rejected the notion that a judge’s
previous advocacy for a legal, constitutional, or policy position
is a bar to adjudicating a case, even when that position is
directly implicated in the case before the court.”); Schurz
Communications v. FCC, 982 F.2d 1057, 1061-62 (7th Cir.
 5

1992) (Posner, J.); In re Executive Office of the President, 215
F.3d 25, 25-26 (D.C. Cir. 2000) (Tatel, J.).

Since assuming judicial office, I have recused as
appropriate in several cases. See, e.g., United States v. Rayburn
House Office Bldg., Room 2113, Wash., DC 20515, No. 06-3105
(D.C. Cir. July 28, 2006) (order); Cobell v. Kempthorne, 455
F.3d 317 (D.C. Cir. 2006). In this case, however, recusal is not
supported by or appropriate under either the specific provisions
of § 455(b) or the general provision of § 455(a). Therefore, I
denied the motion.