Citizens for Responsibility & Ethics v. Office of Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2008 Decided May 19, 2009

No. 08-5188

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
APPELLANT

v.

OFFICE OF ADMINISTRATION,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-00964)

Anne L. Weismann argued the cause for appellant. With
her on the briefs was Melanie T. Sloan.

Paul J. Orfanedes, Dale L. Wilcox, and James F.
Peterson were on the brief for amicus curiae Judicial Watch,
Inc., in support of appellant.

Thomas M. Bondy, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Gregory G. Katsas, Assistant Attorney General, Jeffrey A.
Taylor, U.S. Attorney, and Mark B. Stern, Attorney. Mark R.
Freeman and Michael S. Raab, Attorneys, and R. Craig
Lawrence, Assistant U.S. Attorney, entered appearances.
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Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge,
and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: This is the latest in a line of
cases in which we are asked to decide whether a unit within
the Executive Office of the President is covered by the
Freedom of Information Act, 5 U.S.C. § 552 (2006). In this
case, we conclude that the Office of Administration is not
because it performs only operational and administrative tasks
in support of the President and his staff and therefore, under
our precedent, lacks substantial independent authority.

I.

Citizens for Responsibility and Ethics in Washington
(CREW) alleges that the Office of Administration (OA)
discovered in October 2005 that entities in the Executive
Office of the President (EOP) had lost millions of White
House e-mails. In April 2007, CREW made a FOIA request of
OA asking for information about the missing e-mails. CREW
sought records about the EOP’s e-mail management system,
reports analyzing potential problems with the system, records
of retained e-mails and possibly missing ones, documents
discussing plans to find the missing e-mails, and proposals to
institute a new e-mail record system. OA agreed to produce
the records but asked CREW to either limit the scope of the
request or set a new timetable, protesting that it could not
meet FOIA’s timeframe for expedited requests given the
broad scope of the inquiry. CREW responded that its request
was not so broad as OA supposed and held fast to its demand
that the documents be produced within FOIA’s time limits.
When the deadline passed and OA had not turned over the
 3
records or even provided an anticipated date for doing so,
CREW filed this action in May 2007.

In June 2007, the parties agreed to a timeline for
producing the records, but within weeks OA changed course
and told CREW, for the first time in this dispute, that it is not
covered by FOIA because it provides administrative support
and services directly to the President and the staff in the EOP,
putting it outside FOIA’s definition of “agency.” Even so, OA
produced some of the records, but only, in its own words, “as
a matter of administrative discretion.” Letter from Carol
Ehrlich, Freedom of Information Act Officer, Office of
Admin., to Anne Weismann, CREW (June 21, 2007). OA
refused to turn over the bulk of the potentially responsive
records—more than 3000 pages.

In August 2007, OA took its argument to the district
court and filed a motion for judgment on the pleadings.
CREW opposed the motion, asserting, among other things,
that discovery was needed on the jurisdictional question
whether OA is covered by FOIA. The district court denied
OA’s motion without prejudice and allowed CREW to
conduct limited jurisdictional discovery to explore “the
authority delegated to [OA] in its charter documents and any
functions that OA in fact carries out.” Citizens for
Responsibility & Ethics in Wash. v. Office of Admin., No. 07-
964, at 6 (D.D.C. Feb. 11, 2008) (order denying motion for
judgment and directing discovery). The court ordered
discovery on whether “OA acts with the type of substantial
independent authority that has been found sufficient to make”
other EOP units “subject to FOIA.” Id. at 5. OA produced
more than 1300 pages of records about its responsibilities,
provided a sworn declaration by its general counsel, and
submitted its director to a deposition.
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Following discovery, the district court granted OA’s
motion to dismiss CREW’s complaint for lack of subject
matter jurisdiction, see FED. R. CIV. P. 12(b)(1), concluding
that OA is not an agency under FOIA because it “lacks the
type of substantial independent authority” this court “has
found indicative of agency status for other EOP components.”
Citizens for Responsibility & Ethics in Wash. v. Office of
Admin., 559 F. Supp. 2d 9, 21 (D.D.C. 2008). For the same
reason, the district court held in the alternative that CREW
had failed to state a claim for relief, see FED. R. CIV. P.
12(b)(6). On CREW’s motion for a stay pending appeal, the
court ordered OA to preserve and keep in its control any
records that might be responsive to CREW’s FOIA request.

CREW appeals the district court’s dismissal of the
complaint and the limits placed on the scope of jurisdictional
discovery. We have jurisdiction under 28 U.S.C. § 1291
(2006). We review de novo the district court’s grant of OA’s
motion to dismiss. See Nat’l Taxpayers Union, Inc. v. United
States, 68 F.3d 1428, 1432 (D.C. Cir. 1995). We review the
district court’s limits on discovery for abuse of discretion. See
Islamic Am. Relief Agency v. Gonzalez, 477 F.3d 728, 737
(D.C. Cir. 2007).

II.

Congress enacted the Freedom of Information Act in
1966 to provide public access to certain categories of
government records. The Act strives “to pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352,
361 (1976). Described in its most general terms, FOIA
requires covered federal entities to disclose information to the
public upon reasonable request, see 5 U.S.C. § 552(a), unless
 5
the information falls within the statute’s exemptions, see id.
§ 552(b).

By its terms, FOIA applies only to an “agency,” and the
key inquiry of this appeal is whether the Office of
Administration is an agency under the Act. In the original
statute, “agency” was defined broadly as any “authority of the
Government of the United States . . . .” Administrative
Procedure Act, Pub. L. No. 89-554, § 551(1), 80 Stat. 378,
381 (1966) (codified as amended at 5 U.S.C. § 551(1)). In
1974, Congress amended the definition of “agency” to
include, more specifically, “any executive department,
military department, Government corporation, Government
controlled corporation, or other establishment in the executive
branch of the Government (including the Executive Office of
the President), or any independent regulatory agency.” 5
U.S.C. § 552(f)(1).1 Although the 1974 amendments

1
President Franklin Delano Roosevelt created the EOP through the
authority granted him by Congress. See Reorganization Act of
1939, ch. 36, 53 Stat. 561 (1939). He submitted two reorganization
plans to Congress that set forth the EOP’s structure. See
Reorganization Plan No. I of 1939, 4 Fed. Reg. 2727 (July 1, 1939),
reprinted in 5 U.S.C. app. at 527 (2006), and in 53 Stat. 1423
(1939); Reorganization Plan No. II of 1939, 4 Fed. Reg. 2731 (July
1, 1939), reprinted in 5 U.S.C. app. at 534 (2006), and in 53 Stat.
1431 (1939). President Roosevelt intended that the EOP would
“reduce the difficulties of the President in dealing with the
multifarious agencies of the executive branch and assist him in
distributing his responsibilities as the chief administrator of the
Government by providing him with the necessary organization and
machinery for better administrative management.” Reorganization
Plan No. I of 1939, Message of the President, reprinted in 5 U.S.C.
app. at 531 (2006). Today, the EOP is overseen by the President’s
Chief of Staff and consists of temporary and permanent units that
help the President develop and implement his policy agenda,
manage the functioning of the executive branch, and communicate
 6
expressly include the EOP within the definition of “agency,”
the Supreme Court relied upon their legislative history to hold
that FOIA does not extend to “the President’s immediate
personal staff or units in the Executive Office [of the
President] whose sole function is to advise and assist the
President,” Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 156 (1980) (quoting H.R. REP. NO. 93-
1380, at 15 (1974) (Conf. Rep.)). The Supreme Court’s use of
FOIA’s legislative history as an interpretive tool has given
rise to several tests for determining whether an EOP unit is
subject to FOIA. These tests have asked, variously, “whether
the entity exercises substantial independent authority,”
Armstrong v. Executive Office of the President, 90 F.3d 553,
558 (D.C. Cir. 1996) (internal quotation mark omitted),
“whether . . . the entity’s sole function is to advise and assist
the President,” id. (internal quotation mark omitted), and in an
effort to harmonize these tests, “how close operationally the
group is to the President,” “whether it has a self-contained
structure,” and “the nature of its delegat[ed]” authority, Meyer
v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993).

However the test has been stated, common to every case
in which we have held that an EOP unit is subject to FOIA
has been a finding that the entity in question “wielded
substantial authority independently of the President.”
Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995) (per
curiam). In Soucie v. David, we concluded that the Office of
Science and Technology (OST) is an agency covered by
FOIA because it has independent authority to evaluate federal
scientific research programs, initiate and fund research
projects, and award scholarships. 448 F.2d 1067, 1073–75

with the public, Congress, and other groups. See Executive Office
of the President, http://www.whitehouse.gov/administration/eop
(last visited May 1, 2009).
 7
(D.C. Cir. 1971). Similarly, we determined that the Office of
Management and Budget (OMB) exercises substantial
independent authority because it has a statutory duty to
prepare the annual federal budget, which aids both Congress
and the President. See Sierra Club v. Andrus, 581 F.2d 895,
902 (D.C. Cir. 1978). We noted that “Congress signified the
importance of OMB’s power and function, over and above its
role as presidential advisor, when it provided . . . for Senate
confirmation of the Director and Deputy Director of OMB.”
Id. We also held that the Council on Environmental Quality
(CEQ) comes within FOIA because it “coordinate[s] federal
programs related to environmental quality[,] . . . issue[s]
guidelines to federal agencies for the preparation of
environmental impact statements,” and “issue[s] regulations
to federal agencies for implementing all of the procedural
provisions of [the National Environmental Policy Act].”
Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d
1259, 1262 (D.C. Cir. 1980).

By the same token, we have consistently refused to
extend FOIA to an EOP unit that lacks substantial
independent authority. We held that the Council of Economic
Advisors (CEA) was not covered by FOIA because it “has no
independent authority such as that enjoyed either by CEQ or
OST.” Rushforth v. Council of Econ. Advisors, 762 F.2d
1038, 1042 (D.C. Cir. 1985). Specifically, we noted that CEA
“has no regulatory power under [its] statute. It cannot fund
projects based on [its] appraisal, as OST might, nor can it
issue regulations for procedures based on the appraisals, as
CEQ might.” Id. at 1043. And although President Ronald
Reagan’s Task Force on Regulatory Relief comprised senior
White House staffers and cabinet officers whose agencies fall
under FOIA, we concluded that the Task Force was not a
FOIA agency because it lacked substantial authority
independent of the President “to direct executive branch
 8
officials.” Meyer, 981 F.2d at 1297. The Task Force reviewed
agency rules and proposed regulatory revisions to the
President, but it could not issue guidelines or other types of
directives. See id. at 1289–90, 1294. Nor is the National
Security Council (NSC) covered by FOIA because it plays no
“substantive role apart from that of the President, as opposed
to a coordinating role on behalf of the President.” Armstrong,
90 F.3d at 565.

And in Sweetland, we held that members of the
Executive Residence staff do not exercise substantial
authority independent of the President because they only
“assist[] the President in maintaining his home and carrying
out his various ceremonial duties.” 60 F.3d at 854.
Specifically, they “provide[] for the operation of the
[residence]” by preparing meals, greeting visitors, making
repairs, improving the rooms’ mechanical systems, and
providing needed services for official functions. Id.
Sweetland’s analysis and disposition have special force in this
matter because it involved an EOP unit that, like OA,
provided to the President only operational and administrative
support. Where that is the purpose and function of the unit, it
lacks the substantial independent authority we have required
to find an agency covered by FOIA. See id. (emphasizing that
the “staff of the Executive Residence exercises none of the
independent authority that we found to be critical in holding
other entities that serve the President to be agencies subject to
FOIA”).

OA’s charter documents created an office within the EOP
to perform tasks that are entirely operational and
administrative in nature. President Jimmy Carter proposed
OA as the “base for an effective EOP budget/planning system
through which the President can manage an integrated EOP
rather than a collection of disparate units.” Reorganization
 9
Plan No. 1 of 1977, Message of the President, H.R. DOC. NO.
95-185 (July 15, 1977), reprinted in 5 U.S.C. app. at 661
(2006). OA “shall provide components of the [EOP] with
such administrative services as the President shall from time
to time direct.” Reorganization Plan No. 1 of 1977, § 2, 42
Fed. Reg. 56,101, 56,101 (July 15, 1977), reprinted as
amended in 5 U.S.C. app. at 658 (2006), and in 91 Stat. 1633,
1633 (1977). President Carter ordered OA to “provide
common administrative support and services to all units
within [the EOP], except for such services provided [by the
White House] primarily in direct support of the President.”
Exec. Order No. 12,028, 42 Fed. Reg. 62,895, 62,895 (Dec.
12, 1977). However, OA “shall, upon request, assist the White
House Office in performing its role of providing those
administrative services which are primarily in direct support
of the President.” Id. OA continues to exercise these same
functions and duties today. See Office of Administration,
http://www.whitehouse.gov/administration/eop/oa (last visited
May 1, 2009) (“The organization’s mission is to provide
administrative services to all entities of the [EOP], including
direct support services to the President of the United States.”).
Significantly, OA’s director is “not accountable for the
program and management responsibilities of units within the
[EOP]”; instead, “the head of each unit . . . remain[s]
responsible for those functions.” Exec. Order No. 12,122, 44
Fed. Reg. 11,197, 11,197 (Feb. 26, 1979).

As its name suggests, everything the Office of
Administration does is directly related to the operational and
administrative support of the work of the President and his
EOP staff. OA’s services include personnel
management; financial management; data processing; library,
records, and information services; and “office services and
operations, including: mail, messenger, printing and
duplication, graphics, word processing, procurement, and
 10
supply services.” Exec. Order No. 12,028, 42 Fed. Reg. at
62,895. CREW contends that OA’s support of non-EOP
entities—including the Navy, the Secret Service, and the
General Services Administration—undermines the
government’s argument. But those units only receive OA
support if they work at the White House complex in support
of the President and his staff. Assisting these entities in these
activities is consistent with OA’s mission. See Citizens for
Responsibility & Ethics in Wash., 559 F. Supp. 2d at 16; see
also Def.’s Mem. in Support of its Mot. To Dismiss for Lack
of Subject Matter Jurisdiction at 19, Citizens for
Responsibility & Ethics in Wash. v. Office of Admin., No. 07-
964 (D.D.C. Apr. 25, 2008) (“OA has interagency agreements
for OA’s provision of voice systems operation and
maintenance on the White House complex to several non-
EOP entities . . . because of those entities’ presence there to
support the EOP.”). Because nothing in the record indicates
that OA performs or is authorized to perform tasks other than
operational and administrative support for the President and
his staff, we conclude that OA lacks substantial independent
authority and is therefore not an agency under FOIA.

CREW insists that OA is covered by FOIA because it
thought itself so for nearly thirty years, complying with FOIA
requests and even issuing regulations governing the process
for producing records under the statute. In response, the
government argues there has been on ongoing discussion in
the Executive Branch questioning OA’s status under FOIA
since at least 1995, when the district court in Armstrong v.
Executive Office of the President, 877 F. Supp. 690 (D.D.C.
1995), considered the application of FOIA to the NSC. The
government also points to a brief it filed in the district court in
2000 in a Privacy Act case, arguing that there was some doubt
about whether OA was subject to FOIA because it lacked
substantial independent authority. See Mem. in Support of
 11
Def.’s Mot. for Partial Summ. J. at 26 n.8, Barr v. Executive
Office of the President, No. 99-1695 (D.D.C. Feb. 24, 2000).

The history of OA’s positions on the matter is of no
moment because we have been clear that past views have no
bearing on the legal issue whether a unit is, in fact, an agency
subject to FOIA. In Armstrong, we held that the NSC’s “prior
references to itself as an agency are not probative on the
question . . . whether [it] is indeed an agency within the
meaning of the FOIA.” 90 F.3d at 566. Even though the NSC
had taken the view on numerous occasions, including in
litigation, that it was covered by FOIA, we concluded that
NSC’s past position “should not be taken to establish as a
matter of law[] that the NSC is subject to” FOIA, id. We
conclude the same for OA.

CREW raises two more arguments on appeal, neither of
which warrants reversal. Although the district court dismissed
the complaint for failure to state a claim under Rule 12(b)(6),
CREW argues the district court erred by also dismissing the
complaint for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1). We agree. CREW’s claims were not “so
insubstantial, implausible, foreclosed by prior decisions of
this Court, or otherwise completely devoid of merit” to
warrant “[d]ismissal for lack of subject-matter jurisdiction,”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89
(1998). But this error does not require reversal. We “may
affirm on different grounds the judgment of a lower court if it
is correct as a matter of law.” In re Marin, 956 F.2d 335, 339
(D.C. Cir. 1992). Because we conclude that OA is not an
agency covered by FOIA, we find sufficient grounds to affirm
the district court’s dismissal of the complaint for failure to
state a claim. See Sweetland, 60 F.3d at 855 (affirming the
district court’s decision that the complaint, which alleged
FOIA violations by members of the Executive Residence,
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could be dismissed under Rule 12(b)(6), but refusing to
uphold the dismissal under Rule 12(b)(1)).

Finally, CREW contends that the district court abused its
discretion by limiting discovery to jurisdictional issues. We
give the district court much room to shape discovery. See,
e.g., Islamic Am. Relief Agency, 477 F.3d at 737 (explaining
that the “district court has broad discretion in its handling of
discovery”). CREW argues that the district court should have
ordered OA to produce a variety of records, including
documents disclosing OA’s organizational structure, OA staff
manuals, all record disposition schedules OA submitted to the
National Archives since 1977, any documents discussing
OA’s retention of its records, all materials relating to OA’s
implementation of FOIA, and the most recent information
management plan. The record shows the district court allowed
CREW to obtain more than 1300 pages of documents that
shed light on OA’s authority and operations, an understanding
of which is critical for determining whether OA is subject to
FOIA. OA also submitted a declaration from its general
counsel discussing the timeline of the government’s internal
deliberations about its agency status, and it permitted OA’s
director to be deposed and questioned by CREW attorneys
about OA’s history of compliance with FOIA, its interactions
with federal agencies, and the duties OA performs. The
district court appropriately refused CREW’s discovery
requests that did not speak to the question whether OA is an
agency, that involved issues already addressed in the record,
or that pertained to matters not in dispute. We conclude that
the district court provided CREW ample opportunity to obtain
materials exploring whether OA is an agency under FOIA.
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III.

For the foregoing reasons, we hold that OA need not
comply with CREW’s requests because it is not an agency
under FOIA. The judgment of the district court is

Affirmed.