New York Legal Assistance Group v. Board of Immigration Appeals

19-3248-cv
New York Legal Assistance Group v. Board of Immigration Appeals

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2020

Argued: September 17, 2020 Decided: February 5, 2021

Docket No. 19-3248-cv

NEW YORK LEGAL ASSISTANCE GROUP,

Plaintiff-Appellant,
— v. —

BOARD OF IMMIGRATION APPEALS, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW ,
UNITED STATES DEPARTMENT OF JUSTICE,

Defendants-Appellees.

B e f o r e:

JACOBS, LYNCH, and PARK, Circuit Judges.

Plaintiff-Appellant New York Legal Assistance Group (“NYLAG”) seeks
access to non-precedential “unpublished opinions” issued by Defendant-
Appellee the Board of Immigration Appeals (“BIA”) in immigration cases.
NYLAG wants to consult the opinions, which are not routinely made available to
the public, to aid in its representation of low-income clients in removal and
asylum proceedings. NYLAG asserts that the BIA’s failure to make the opinions
publicly available violates the agency’s affirmative obligation under the Freedom
of Information Act (“FOIA”), 5 U.S.C. § 552(a)(2), to “make available for public
inspection in an electronic format final opinions . . . [and] orders, made in the
adjudication of cases.” In this action under FOIA’s remedial provision, 5 U.S.C.
§ 552(a)(4)(B), which authorizes district courts “to enjoin the agency from
withholding agency records and to order the production of any agency records
improperly withheld from the complainant,” NYLAG seeks an order requiring
the BIA to make available to the public all unpublished opinions issued since
November 1, 1996, as well as future unpublished opinions. The United States
District Court for the Southern District of New York (Paul A. Crotty, J.) dismissed
the case, concluding that FOIA’s remedial provision does not authorize district
courts to order agencies to make records publicly available.
We conclude that FOIA’s remedial provision authorizes the relief NYLAG
seeks. FOIA’s text, read in light of its history and purpose, empowers district
courts to order agencies to comply with their affirmative disclosure obligations
under 5 U.S.C. § 552(a)(2), including the obligation to make certain documents
publicly available. We therefore VACATE the judgment of the district court and
REMAND for further proceedings consistent with this opinion.
Judge Park DISSENTS in a separate opinion.

SCOTT L. NELSON, Public Citizen Litigation Group,
Washington, D.C. (Patrick D. Llewellyn, Public Citizen
Litigation Group, Washington, D.C., Danielle Tarantolo,
Jane Greengold Stevens, New York Legal Assistance
Group, New York, NY, on the brief), for Plaintiff-
Appellant.

BENJAMIN H. TORRANCE, Assistant United States Attorney, for
Geoffrey S. Berman, United States Attorney for the
Southern District of New York, New York, NY (Arastu
K. Chaudhury, Assistant United States Attorney, on the
brief), for Defendants-Appellees.

2
 William N. Lawton, Eubanks & Associates LLC, Washington,
D.C., for Amici Curiae The Animal Welfare Institute and
Farm Sanctuary.

GERARD E. LYNCH, Circuit Judge:

This case arises from the failure of the Board of Immigration Appeals

(“BIA”) to make its non-precedential opinions publicly available. Such

“unpublished opinions” constitute the vast majority of the final decisions issued

by the BIA each year, and are cited and relied upon by the BIA itself, by

immigration judges, and by lawyers representing the government in immigration

proceedings. Unpublished opinions, however, are not readily available to

lawyers representing clients in immigration proceedings. New York Legal

Assistance Group (“NYLAG”), a legal services provider, seeks access to the BIA’s

unpublished opinions to aid in its representation of low-income clients in asylum

and removal proceedings.

NYLAG’s request for access is based on the BIA’s affirmative obligation

under the Freedom of Information Act (“FOIA”) to “make available for public

inspection in an electronic format . . . final opinions . . . [and] orders, made in the

adjudication of cases.” 5 U.S.C. § 552(a)(2). Relying on that provision, NYLAG

3
asked the BIA to make publicly available in an electronic format all unpublished

opinions issued since November 1, 1996, as well as any future unpublished

opinions. The BIA denied NYLAG’s request, asserting that the request was

overbroad, that the requested opinions were not “final opinions” or “orders”

under § 552(a)(2), and that, in any event, NYLAG may only request documents

on its own behalf, and may not ask that they be made publicly available.

NYLAG sought relief in federal court under FOIA’s remedial provision,

which authorizes district courts to “to enjoin the agency from withholding

agency records and to order the production of any agency records improperly

withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). The United States

District Court for the Southern District of New York (Paul A. Crotty, J.) dismissed

NYLAG’s complaint, concluding that FOIA’s remedial provision allows district

courts to order agencies to produce documents to the complainant, but not to

make documents available to the public.

This appeal asks us to determine the scope of FOIA’s remedial provision –

specifically, to decide whether it authorizes courts to enforce FOIA’s affirmative

disclosure obligations by ordering that documents be made available to the

public. We conclude that it does. The text of FOIA’s remedial provision and the

4
1974 amendment to it, considered in light of FOIA’s history and purpose, make

clear that Congress gave courts the authority to enforce an agency’s obligation to

make certain documents publicly available.

BACKGROUND1

I. The Freedom of Information Act

FOIA, 5 U.S.C. § 552, originally enacted in 1966, establishes the public’s

right to access to government information. FOIA’s first three paragraphs impose

affirmative obligations on governmental agencies to disclose different categories

of information in different ways. First, § 552(a)(1) requires agencies to publish

certain information in the Federal Register, including descriptions of the agency’s

organization, rules of procedure, and substantive rules of general applicability.

Second, and most relevant here, § 552(a)(2) requires agencies to “make

available for public inspection in an electronic format” certain categories of

information; one such category consists of “final opinions, including concurring

1
This factual background is drawn from the complaint, the allegations of which
we accept as true. See ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490, 492
(2d Cir. 2013).

5
and dissenting opinions, as well as orders, made in the adjudication of cases.”2

That provision, the so-called “reading room” provision, is the modernized

version of FOIA’s original requirement that agencies maintain such documents in

a physical “reading room” housed in the agency and open to the public. Since

1996, agencies have instead been required to make those documents available

online, in effect creating an electronic “reading room.” Section 552(a)(2) also

provides that records subject to the reading room provision may not be “relied

on, used, or cited as precedent by an agency” unless they are publicly available,

or the party opposing the agency has “actual and timely notice of the terms

thereof.”

Finally, the third obligation imposed by FOIA is the one most often

litigated under the statute: under § 552(a)(3), agencies are required to make

identifiable records available in response to requests from the public, subject, of

course, to a number of exceptions described in § 552(b).

2
Section 552(a)(2) also applies to “statements of policy and interpretations” that
have not been published in the Federal Register, “administrative staff manuals
and instructions to staff that affect a member of the public,” and records
frequently requested by the public.

6
 FOIA also creates a private right of action in federal district court to

enforce these obligations. Section 552(a)(4)(B), generally referred to as the

“remedial provision,” provides that:

On complaint, the district court . . . has jurisdiction to
enjoin the agency from withholding agency records and
to order the production of any agency records
improperly withheld from the complainant.

Finally, as relevant here, § 552(a)(6) sets forth procedures that agencies

must follow when responding to requests for information from the public.

II. NYLAG’s FOIA Request

NYLAG is one of the largest providers of legal services to people in

immigration proceedings in New York City. NYLAG provides low-income

clients with a number of services, including direct representation in removal

defense and in asylum proceedings.

The BIA, part of the Executive Office of Immigration Review (“EOIR”) of

the Department of Justice, is tasked with interpreting and applying immigration

law. The BIA hears appeals from cases decided by immigration judges and

district directors of the U.S. Department of Homeland Security.

From 2012 to 2016, the most recent years for which numbers are available

7
in the record, the BIA issued more than 30,000 decisions per year in individual

cases. The vast majority of those decisions are “non-precedential,” meaning that,

although they are binding on the parties, they are not binding on future

immigration courts. The BIA designates only about 30 decisions a year as

precedential, and therefore binding on future immigration courts. Such a

designation requires a majority vote of the active members of the BIA. 8 C.F.R.

§ 1003.1(g). Designated precedential decisions are available online in EOIR’s

electronic reading room.3 A handful of the BIA’s unpublished decisions – those

that the agency has deemed frequently requested – are also available on the

agency’s website.4 The balance of the BIA’s unpublished decisions are not

publicly available electronically.5

EOIR discourages, but does not prohibit, parties from citing unpublished

3
See Agency Decisions, EOIR, https://www.justice.gov/eoir/ag-bia-decisions (last
visited Nov. 12, 2020).
4
See Frequently Requested Records, EOIR,
https://www.justice.gov/eoir/frequently-requested-foia-records (last visited Nov.
12, 2020).
5
NYLAG also alleges that a “small percentage”of unpublished decisions are
available at the EOIR Law Library and Immigration Research Center in Falls
Church, Virginia. J.A. 11.

8
BIA decisions in immigration proceedings.6 Nevertheless, immigration judges

and lawyers representing the government cite unpublished decisions in

immigration proceedings.7 Moreover, despite the BIA’s contention that it

“discourages parties from citing” these opinions, Appellees’ Br. 17 n.3, the BIA

itself has cited them in its decisions.8

6
See Board of Immigration Appeals Practice Manual, EOIR, 61 (2020),
https://www.justice.gov/eoir/page/file/1324276/download (“Citation to non-
precedent Board cases by parties not bound by the decision is discouraged.”);
Immigration Court Practice Manual, EOIR, Appendix J-3 (2020),
https://www.justice.gov/eoir/page/file/1258536/download (“Citation to
unpublished decisions is discouraged because these decisions are not binding on
the Immigration Court in other cases.”).
7
See, e.g., In re Stewart, 2016 WL 4035746, at *1 (B.I.A. June 30, 2016) (“In its
motion, the Government sought remand for the Board to determine the effect on
the respondent’s removability [of] . . . the Board’s decision in an unpublished
case[.]”); In re Iqbal, 2007 WL 2074540, at *3 (B.I.A. June 19, 2007) (“[T]he
Immigration Judge declined to find that the respondent had knowingly
committed marriage fraud . . . . The DHS urges us to find otherwise based on an
unpublished case.”); In re Perez-Herrera, 2018 WL 4611455, at *6 (B.I.A. Aug. 20,
2018) (“The Immigration Judge considered the relevant jury instructions,
Pennsylvania state court cases, and unpublished Board decisions . . . .”); In re
Bayoh, 2018 WL 4002292, at *1 n.1 (B.I.A. June 29, 2018) (“The Immigration
Judge’s decision specifically referenced and attached . . . two Board unpublished
decisions . . . .”).
8
See, e.g., In re Razo, 2017 WL 7660432, at *1 n.1 (B.I.A. Oct. 16, 2017) (“We
separately note that in an unpublished decision issued after the Immigration
Judge’s decision in these proceedings, the Board found that solicitation of
prostitution under a Florida criminal statute is a CIMT.”). In addition, the BIA

9
 NYLAG seeks access to unpublished BIA decisions so that it can use them

in representing clients in immigration proceedings. On June 8, 2018, NYLAG

requested, pursuant to § 552(a)(2), that the BIA make publicly available in

electronic form all unpublished BIA decisions issued after November 1, 1996.

NYLAG also requested that the BIA make publicly available all future

unpublished decisions. On July 13, EOIR responded to NYLAG’s request by

email, stating that the request was overbroad. EOIR also informed NYLAG that it

had begun a process of reviewing and releasing to FOIA requesters unpublished

BIA decisions from October 2015 through 2017. EOIR offered to expeditiously

provide the already-reviewed decisions to NYLAG, along with future

unpublished decisions after they had been reviewed, if NYLAG would agree to

narrow its request to include only those decisions. NYLAG responded by email

on July 17, explaining that it was not willing to narrow its request, and that it was

requesting that EOIR make these documents electronically available to the public,

pursuant to § 552(a)(2), rather than asking EOIR to produce them directly to

has referenced non-precedential opinions cited by respondents in immigration
proceedings, indicating the utility to litigants of such opinions when they have
had access to them. See, e.g., In re Alvarez Fernandez, 2014 WL 4966372, at *2 (B.I.A.
Sept. 23, 2014) (“[T]he respondent submitted an unpublished decision . . . .
Although this decision is not precedential, we adopt a similar analysis . . . .”).

10
NYLAG. NYLAG also offered to work with the agency to establish a reasonable

timeline for complying with the request.

On August 8, 2018, EOIR formally denied NYLAG’s request by letter. EOIR

contended that unpublished BIA opinions are not “final opinions” or “orders”

within the meaning of § 552(a)(2). EOIR also contended that the only remedy

available when an agency fails to post records under § 552(a)(2) is for the party

seeking the records to request them under § 552(a)(3). Finally, EOIR again

asserted that NYLAG’s request was overbroad.

On September 10, 2018, NYLAG appealed the denial of its request to the

Office of Information Policy (“OIP”) at the Department of Justice. NYLAG

asserted that EOIR was required to publicly post in an electronic reading room all

BIA opinions, including unpublished opinions, because they meet the definition

of “final opinions . . . [and] orders, made in the adjudication of cases” under

§ 552(a)(2). NYLAG also contended that § 552(a)(2) empowers individuals and

organizations to request the public posting of records.

III. Proceedings in the District Court

On October 17, 2018, after OIP’s statutory deadline to respond to the

11
appeal had passed,9 NYLAG filed suit in the Southern District of New York

against the BIA, EOIR, and the Department of Justice (hereafter, collectively “the

BIA”) pursuant to § 552(a)(4)(B), contesting the denial of its request. In the

alternative, NYLAG sought relief under the APA. The BIA moved to dismiss the

case under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), arguing that

FOIA’s remedial provision does not authorize district courts to grant the relief

NYLAG seeks. Both parties also moved for summary judgment.

On August 13, 2019, the district court granted the BIA’s motion to dismiss.

Citing a D.C. Circuit decision, Citizens for Responsibility & Ethics in Washington v.

United States Dep't of Justice, 846 F.3d 1235 (D.C. Cir. 2017) (“CREW I”), the court

concluded that “[w]hile the BIA may have an obligation to make available for

public inspection certain opinions, this court only has jurisdiction to order the

production of documents to the complainant.” J.A. 60 (citations omitted). The

district court explained that it read FOIA’s remedial provision – authorizing the

court “to enjoin the agency from withholding agency records and to order the

9
Absent “unusual circumstances,” OIP had 20 business days to respond to
NYLAG's administrative appeal; if it failed to act within that period, NYLAG
could file suit in district court without further delay. 5 U.S.C. § 552(a)(6)(A). On
February 19, 2019, OIP formally denied NYLAG’s administrative appeal.

12
production of any agency records improperly withheld from the complainant” –

as a whole, such that “from the complainant” modifies the entire provision and

authorizes the court to order production only to the complainant. The court

further observed that even if the two clauses in the provision are read

individually, “[t]he use of the term ‘withholding’ [in the first half] suggests, in

the context of the statute, that the records were withheld from a complainant.”

J.A. 63.

Because the district court concluded that it did not have the authority to

order the remedy NYLAG sought, it did not decide whether the BIA’s

unpublished opinions were “final opinions, including concurring and dissenting

opinions, as well as orders, made in the adjudication of cases” within the

meaning of § 552(a)(2), or whether ordering the BIA to make its unpublished

decisions publicly available would unduly burden the BIA.10 The district court

10
The parties contested both of these questions below, but did not address them
on appeal. We assume for the purposes of this appeal, without deciding, that the
BIA’s unpublished opinions are subject to disclosure under § 552(a)(2), and leave
that question for the district court to address in the first instance. Similarly, we
leave the question of undue burden for the district court to address, should it
conclude that relief is necessary. See Hartford Courant Co. v. Pellegrino, 380 F.3d 83,
90 (2d Cir. 2004) (“In general, we refrain from analyzing issues not decided
below . . . .”).

13
also denied NYLAG’s request for relief under APA § 704, which authorizes

courts to provide a remedy only when “there is no other adequate remedy.” 5

U.S.C. § 704. The court concluded that because “FOIA provides an alternative,

adequate remedy,” namely the production of documents to the complainant

rather than to the public, NYLAG’s APA claim was without merit. J.A. 64.11

The district court dismissed the complaint. This appeal followed.

DISCUSSION

We review the grant of a motion to dismiss de novo, “accepting as true all

factual claims in the complaint and drawing all reasonable inferences in the

plaintiff’s favor.” Singh v. Cigna Corp., 918 F.3d 57, 62 (2d Cir. 2019) (internal

quotation marks omitted).12 The subject of our analysis is the question decided by

11
NYLAG contests this conclusion on appeal, see Appellant’s Br. 46, but because
we conclude that FOIA does authorize the remedy NYLAG seeks, we need not
address the availability of relief under the APA.
12
It is not clear whether the district court granted the BIA’s motion to dismiss
under Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). See J.A. 58-59
(providing the legal standard for both provisions). Although our standard of
review is the same under either provision, we note that this motion was properly
addressed under Rule 12(b)(6). As we explained in Main Street Legal Services, Inc.
v. National Security Council, courts should “construe § 552(a)(4)(B) to reference
remedial power, not subject-matter jurisdiction” because its “language does not
speak to the court's ability to adjudicate a claim, but only to the remedies that the
court may award.” 811 F.3d 542, 566 (2d Cir. 2016); see also id. (explaining that

14
the district court: what relief does FOIA’s remedial provision empower district

courts to order? Before reaching that question, we canvass the decisions of other

circuits on the same point and consider whether they offer helpful guidance.

I. Decisions of Other Circuits

The question before us on appeal is one that has divided our sister circuits.

The district court relied heavily on the D.C. Circuit’s decision in CREW I to

support its restrictive interpretation of FOIA’s remedial provision and the BIA

urges us to do the same on appeal. NYLAG refers us to Animal Legal Defense Fund

v. USDA, 935 F.3d 858 (9th Cir. 2019) (“ALDF”), decided after the decision below,

in which the Ninth Circuit reached the opposition conclusion, holding that FOIA

empowers district courts to order agencies to make records available for public

inspection. We consider each decision in turn.

In CREW I, the D.C. Circuit considered whether a district court could

compel the Department of Justice’s Office of Legal Counsel (“OLC”), which

provides legal advice to the executive branch, to comply with FOIA’s reading

room provision by making electronically available existing and future OLC

references to “jurisdiction” with regard to this provision in previous cases also
refer to remedial power).

15
opinions. 846 F.3d at 1239. The court concluded that FOIA’s remedial provision

authorizes district courts to enter an injunction “requir[ing] disclosure of

documents and indices only to [the plaintiff], not disclosure to the public.” Id. at

1244.13

While we appreciate the D.C. Circuit’s analysis in CREW I, we do not find

it persuasive for a number of reasons. First, both parties to the case “narrowly

construe[d] FOIA’s remedial provision,” assuming that, on its face, the text does

not permit the court to order that documents be made available for public

inspection. Id. at 1241. Consequently, the court spent little time parsing the text of

the statute, and instead proceeded directly to considering whether courts had

equitable authority to order the remedy CREW sought. Id. As described below,

however, we find that the text of FOIA’s remedial provision does support the

position that courts may order the relief sought here. Therefore, we need not rely

on the equitable power the D.C. Circuit rejected.

Moreover, the court in CREW I clearly considered itself bound by its prior

13
Because CREW sought relief under the APA, the ultimate question the court
addressed, which it decided in the affirmative, was whether FOIA’s remedial
provision provided an “adequate remedy” such that review under the APA was
precluded. Id. at 1246 (quoting 5 U.S.C. § 704).

16
decision in Kennecott Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191 (D.C.

Cir. 1996), in which the D.C. Circuit held that courts do not have the power to

order agencies to publish documents in the Federal Register, as required by

§ 552(a)(1). See CREW I, 846 F.3d at 1243 (“Given Kennecott’s construction of

section 552(a)(4)(B), we think it clear that a court has no authority under FOIA to

issue an injunction mandating that an agency ‘make available for public

inspection’ documents subject to the reading-room provision.”).14 We, of course,

are not bound by that precedent.

Finally, the D.C. Circuit itself appears to have reservations about the

interpretation of the remedial provision expressed in CREW I. In a second case

involving the same parties, the plaintiff sought the same relief under FOIA that

14
The dissent argues that Kennecott’s analysis contains the careful parsing of the
text that CREW I lacks. That is, to some extent, true. However, Kennecott was
addressing a request for publication to the Federal Register under § 552(a)(1). 88
F.3d at 1202-03. Accordingly, much of the analysis in that decision turns on
whether “production” in § 552(a)(4) encompasses “publication” to the Federal
Register as required by § 552(a)(1). Id. at 1203. Although we agree that the district
court’s authority to provide a remedy is likely to be the same as to both
provisions, we note that § 552(a)(2) does not command “publication”; instead, it
commands that the agency “make available for public inspection in an electronic
format” the relevant documents. Accordingly, the D.C. Circuit’s interpretation of
whether “production” encompasses “publication” is not directly relevant to the
question before us.

17
the court had earlier denied under the APA. Citizens for Responsibility & Ethics in

Washington v. U.S. Dep't of Justice (CREW II), 922 F.3d 480 (D.C. Cir. 2019). In that

case, the D.C. Circuit construed CREW I narrowly as turning on the fact that the

plaintiff “improperly brought its claim under the Administrative Procedure Act,

5 U.S.C. § 704, instead of FOIA's judicial-review provision.” Id. at 485.15

For all of these reasons, we decline to follow the D.C. Circuit’s decision in

CREW I. We turn next to the Ninth Circuit’s decision in ALDF, which we find

more persuasive.

In ALDF, plaintiffs, animal rights organizations, sought access to facility

inspection reports, warning letters, administrative complaints, and other

documents generated by the Animal Plant Health Inspection Service (“APHIS”)

in its implementation of the Animal Welfare Act. 935 F.3d at 863-64. These

documents were previously available in APHIS’s electronic reading room and

labeled as “frequently requested.” Id. at 864. In 2017, APHIS removed these

15
Ultimately, the court in CREW II again dismissed CREW’s complaint, ruling
that CREW had not adequately alleged that the requested OLC opinions had
been adopted by the agencies to which they were addressed, while noting that
records are “withheld” by the failure to comply with the reading room
requirement. Id. at 486. Judge Pillard, dissenting, would have held that the
complaint stated a claim for relief. Id. at 490-94.

18
records from its electronic reading room and announced that it would no longer

be making them publicly available. Id. Plaintiffs filed suit, seeking to compel

APHIS to restore the documents, and to continue posting them. Id. at 865.

The Ninth Circuit concluded that the remedy plaintiffs sought was

authorized by FOIA’s remedial provision.16 The court began with the text of the

provision and concluded that the words “mean what they say: FOIA authorizes

district courts to stop the agency from holding back records it has a duty to make

available” and order them to be made publicly available. Id. at 869. The court also

noted that if the provision allowed courts to order the production of documents

only to the complainant, “then the judicial-review provision would not need the

words ‘jurisdiction to enjoin the agency from withholding agency records,’”

which would be superfluous. Id. at 870. The court turned next to the structure of

FOIA, and relied on the fact that Congress made clear that the judicial review

provision applies to all three parts of § 552(a). Id. at 871. The court concluded that

it would make little sense if the only remedy for documents withheld under

§ 552(a)(2) was the same as that for documents withheld under § 552(a)(3), the

request provision. Id. at 872. We find a number of these points persuasive and

16
Judge Callahan dissented. Id. at 877-78.

19
adopt them in our own analysis, as set forth below.

But while the opinions of the other circuits that have addressed the issue

are in many respects enlightening, in the end, they do not reflect a consensus.

Rather, both circuits that have ruled, in apparently divergent ways, on the

question before us appear divided, and their rulings are in any event not binding

on us. Accordingly, we undertake our own independent analysis of the proper

interpretation of FOIA’s remedial provision. Based on that analysis, we conclude

that the text, the context, the historical evolution, and the purpose of that

provision all support the conclusion that Congress has authorized courts to order

agencies to comply with the obligations Congress imposed on them in § 552(a)(2).

II. FOIA’s Remedial Provision

The provision at issue in this appeal authorizes courts “to enjoin the

agency from withholding agency records and to order the production of any

agency records improperly withheld from the complainant.” 5 U.S.C.

§ 552(a)(4)(B). An agency withholds records “improperly” when it fails to comply

with FOIA’s “mandatory disclosure requirements” in § 552(a)(2), U.S. Dep't of

Justice v. Tax Analysts, 492 U.S. 136, 150 (1989), and the parties agree that FOIA’s

remedial provision is clear on its face that it can be used to remedy an agency’s

20
failure to comply with § 552(a)(2).

The parties disagree, however, about the scope of relief available. NYLAG

argues that the court may order relief that aligns with the affirmative obligation

described in each paragraph of § 552(a), meaning that to remedy a failure to

comply with § 552(a)(2), the court may order that documents be posted to an

electronic reading room. The BIA contends that the relief available is more

limited, and that a court can only order the production of the missing documents

to the individual seeking those documents.

A. Text

“Every exercise in statutory construction must begin with the words of the

text.” Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003). The words of the

text to be interpreted are not considered alone, however. Instead, we “look[ ] to

the statutory scheme as a whole and plac[e] the particular provision within the

context of that statute.” Id. If the text of the statute “is not entirely clear, we then

turn to the broader statutory context and its history.” Khalid v. Sessions, 904 F.3d

129, 132 (2d Cir. 2018).

The district court concluded, apparently with little difficulty, that the text

of § 552(a)(4)(B) must be read as according with the BIA’s position that courts

21
may order an agency to produce documents only to the complainant rather than

the general public. The court read the provision as authorizing only a single form

of relief (in effect, “to enjoin and to order”) – with the second verb simply

defining and limiting the first. In other words, Congress authorized courts to

remedy violations of any provision of FOIA, including that requiring that

documents be made available to the general public, only by ordering the

production of the withheld documents to the complainant.

NYLAG contends, however, that the remedial provision’s text should be

read as containing two separate clauses: first, the district court has authority “to

enjoin the agency from withholding agency records,” and second, the court is

further empowered “to order the production of any agency records improperly

withheld from the complainant.” § 552(a)(4)(B). According to NYLAG, the use of

the conjunctive “and” in this provision means that Congress gave the courts both

the power to “enjoin the agency from withholding” records and the power to

“order the production” of records.17 NYLAG argues that the BIA is improperly

17
NYLAG further argues that even this second provision is not limited to
ordering the production of documents only to the complainant, because a district
court could order the production of documents to an electronic reading room.
Appellant’s Br. 25-26.

22
withholding unpublished decisions, and seeks an order “enjoin[ing]” the agency

from continuing to withhold those records from public inspection as required by

§ 552(a)(2). NYLAG further argues that interpreting this provision to mean that

Congress withheld from courts the authority to enjoin agencies from violating the

reading room provision would be directly contrary to the statutory text. See

ALDF, 935 F.3d at 869; see also Animal Welfare Inst. v. U.S. Dep't of Agric., No.

6:18-CV-06626-MAT, 2019 WL 3083025, at *6 (W.D.N.Y. July 15, 2019) (“[A] plain

reading of this section seems to suggest that a district court has both the authority

to enjoin the agency from withholding records (i.e., injunctive relief), and to

order the production of any agency records withheld from a particular plaintiff,

which would appear to cover the reading room provision.”).

In contrast, the BIA argues that the text of FOIA’s remedial provision

should be read so that the final clause (“improperly withheld from the

complainant”) modifies the entire provision.18 Accordingly, the BIA contends, if a

18
The BIA also asserts that allowing the court to order the documents to be
produced for public inspection would allow NYLAG to impermissibly seek relief
for a “generally available grievance . . . suffered equally by all members of the
public.” Appellees’ Br. 15, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74
(1992). But here, there can be no dispute that NYLAG has raised an individual
injury that is concrete and particularized: it alleges that “[t]he agency’s failure to
make unpublished BIA decisions publicly available . . . impair[s] NYLAG’s

23
district court concludes that the agency has improperly withheld records, it may

order that those records produced only to the complainant, not the general public.

Although neither parties’ reading is “wholly without force,” United States

v. Epskamp, 832 F.3d 154, 162 (2d Cir. 2016), we find NYLAG’s position more

persuasive. On one hand, the phrase “to the complainant” appears somewhat

redundant if it is not read to limit the court’s power. However, “a coordinating

junction like ‘and’” is typically used for “linking independent ideas,” Bruesewitz

v. Wyeth LLC, 562 U.S. 223, 236 (2011), suggesting that Congress meant to

authorize courts to exercise two independent powers, only the second of which

would be modified by the phrase “to the complainant.”

Moreover, the syntax of the provision belies the BIA’s argument. The

conjunction “and” links two infinitives: “to enjoin” and “to order.” The phrase

“from the complainant” appears in the phrase governed by the latter infinitive. If

it were intended to modify “withholding” in the phrase governed by “to enjoin”

ability to represent clients in immigration proceedings.” Appellant’s Br. 10. This
type of injury has been found to satisfy the constitutional requirements of
standing. See Fed. Election Comm’n v. Akins, 524 U.S. 11, 21 (1998) (“[A] plaintiff
suffers an ‘injury in fact’ when the plaintiff fails to obtain information which
must be publicly disclosed pursuant to a statute.”). It is not shared by all
members of the public who are aggrieved in a general way by the BIA’s failure to
comply with FOIA’s requirements.

24
as well as “withheld” in the second phrase governed by “to order,” that intention

would have to be expressed by adding commas after “records” in the first

infinitive phrase and “withheld” in the second, in order to take the words “from

the complainant” out of the second infinitive phrase. Cf. Am. Int’l Grp., Inc. v.

Bank of Am. Corp., 712 F.3d 775, 781-82 (2d Cir. 2013) (explaining that “[w]hen

there is no comma . . . the subsequent modifier is ordinarily understood to apply

only to its last antecedent”).

Imagining the provision punctuated in that way, however, only

emphasizes how stilted and unnatural the BIA’s reading of the text is. If Congress

intended the interpretation that the BIA proposes, it would be far more natural to

draft the provision as: “to enjoin the agency from withholding agency records

from the complainant, and to order the production of any agency records

improperly so withheld.” While both parties’ readings are possible, NYLAG’s

interpretation seems to us by a good measure the more natural meaning of the

language chosen by Congress.

The parties’ subsidiary arguments do nothing to alter that conclusion. First,

both parties turn to the canon against superfluity, each arguing that its

opponent’s reading violates the “cardinal rule” that “instructs courts to interpret

25
a statute to effectuate all its provisions, so that no part is rendered superfluous.”

Hibbs v. Winn, 542 U.S. 88, 89 (2004). NYLAG asserts that the BIA’s reading

would render the first clause, granting courts the authority to “enjoin the agency

from withholding agency records” superfluous, since the first provision would

merely duplicate the relief authorized by the second clause. The BIA, in turn,

argues that NYLAG’s reading also creates superfluity – if the first clause in the

provision allows a court to grant broad relief, the relief in the second clause,

allowing the court to order production of documents to the complainant, would

be subsumed in the first. To some extent, therefore, the parties’ respective

arguments from the canon against superfluity cancel each other out.19

19
The mutual arguments from superfluity here illustrate the point that the
Supreme Court has made concerning the limited force of arguments from
superfluity: Congress not infrequently uses arguably redundant language in
order to emphasize the breadth of its meaning and avoid creating loopholes in
statutes. See Marx v. Gen. Revenue Corp., 568 U.S. 371, 385 (2013) (phrase alleged to
be redundant “would not be superfluous if Congress included it to remove
doubt”). Accordingly, “the canon against surplusage ‘assists only where a
competing interpretation gives effect to every clause and word of a statute,’” and
should not be determinative where “no interpretation of [the statute] gives effect
to every word,” as is the case here. Id. at 385, quoting Microsoft Corp. v. i4i Ltd.
P’ship, 564 U.S. 91, 106 (2011). For that reason, we disagree with the dissent’s
somewhat strained assertion, advanced without supporting authority, that the
BIA’s redundant interpretation is inherently better because it renders the broader
clause redundant rather than the narrower one. See Dissent at 6-7.

26
 NYLAG offers a variant on the superfluity argument that, at least in a

marginal way, cuts in its favor. As NYLAG points out, courts often apply the rule

that a word is known by the company it keeps in order to “avoid ascribing to one

word a meaning so broad that it is inconsistent with its accompanying words.”

Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (interpreting “communication”

narrowly so as not to render “‘notice, circular, advertisement, and letter’

redundant”) (internal alterations omitted). Here, that rule suggests that the first

clause is best read as providing a remedy distinct from that authorized by the

second clause. See ALDF, 935 F.3d at 870. Though this argument has at least some

merit, in the end we think that the arguments from superfluity on both sides add

little or nothing to the textual analysis above.

Second, the parties dispute the meaning of the word “withholding” in the

context of the provision. The BIA argues that, in context, the use of the word

“‘withholding’ suggests . . . that the records were withheld from a complainant.”

Appellee Br. 13 (quoting the district court’s decision on the same point). The BIA

also notes that elsewhere in the statute, the term “withholding” “is linked to a

request for information rather than generally failing to making documents

available to the public.” Appellees’ Br. 13, citing § 552(a)(4)(F)(i) and § 552(d). The

27
BIA contends that the proper remedy, therefore, is to make the documents

available to the complainant, not the public.20

However, it is entirely natural to say that an agency “withholds”

documents when it fails to publish them in violation of a direct statutory

command that they be published in a manner accessible to the public. The

definition of “withhold” is “to hold back from action.” Appellant’s Br. 25, citing

The Merriam-Webster.com Dictionary (last visited December 2, 2020),

https://www.merriam-webster.com/dictionary/withhold.21 Applying that

20
The BIA also relies on Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1
(1974), for the proposition that FOIA’s remedial provision authorizes district
courts “to grant injunctive relief of a described type, namely, ‘to enjoin the
agency from withholding agency records and to order the production of any
agency records improperly withheld from the complainant.’” 415 U.S. at 18. That
argument overreads a particular remark by ignoring the context in which it was
made. The Court in Bannercraft rejected the idea that the remedies authorized by
FOIA are exclusive, notwithstanding the usual rule that the provision of a
specific remedy implies exclusivity. Instead, it held that the grant of equity power
in the statute is broad, concluding “there is little [in the text of FOIA] to suggest,
despite the Act’s primary purpose, that Congress sought to limit the inherent
powers of an equity court.” Id. at 19-20; accord, CREW I, 846 F.3d at 1241-42.
Properly read, Bannercraft does not directly address the issue in this case, and
supports an expansive rather than restricted view of the remedies available to a
FOIA plaintiff.
21
To the extent it matters, the meaning of “withhold” has not changed materially
since the period when FOIA was first enacted. See WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 2627 (1971 ed.) (defining “withhold” as “to hold

28
definition, NYLAG argues that an agency “withholds” records when it “holds

back from” publicly posting those records. Appellant Br. 25; see also ALDF, 935

F.3d at 869. We find NYLAG’s argument persuasive. At a minimum, the BIA’s

argument is insufficient to overcome our basic conclusion regarding the better

understanding of the text.

In short, although neither party’s interpretation of FOIA’s remedial

provision is entirely implausible, NYLAG’s position is clearly the more

persuasive one.

B. Context

We turn next to the broader context of the contested provision. The

structure of the statutory scheme in which the remedial provision is embedded

reinforces our conclusion regarding its proper interpretation. Although each

party’s structural argument has some merit, the structure of the statute on

balance clearly provides stronger support to NYLAG’s position.

The BIA begins by pointing out that the statute lays out administrative

procedures and deadlines that an agency must follow in responding to “any

request for records made under paragraph (1), (2), or (3)” of § 552(a). 5 U.S.C

back[, ]keep from action”).

29
§ 552(a)(6)(c)(1). Under those procedures, “[u]pon any determination by an

agency to comply with a request for records,” the records must be “made

promptly available” to the “person making [the] request.” Id. That provision

suggests that Congress anticipated that an agency would respond to a request by

producing documents to the requester, regardless of the paragraph under which

the request was made – although NYLAG not unreasonably points out that an

agency could make the records available to a requester by making them

conveniently available to the public.

Similarly, under § 552(a)(4)(F), when a district court “orders the production

of any agency records improperly withheld from the complainant” it may also

refer the agency to the Office of Special Counsel to investigate whether agency

personnel acted arbitrarily and capriciously in withholding the documents. The

BIA argues that this provision implies that Congress anticipated that the only

relief a court could order would be production of documents to the complainant.

That overstates the case, however. Section 552(a)(4)(F) expressly limits the

authority to refer agency personnel for investigation to situations in which

documents are withheld “from the complainant.” While there is no obvious

reason why Congress would limit that remedy to some violations of FOIA but

30
not to others, the express limitation of the Special Counsel investigation to one

particular context does not foreclose the possibility of other remedies. Moreover,

the argument leads directly back to the question of whether an agency withholds

documents – from the complainant as well as from others – when such

documents are not published in the manner that Congress specifically required

the agency to do. Accordingly, the Special Counsel provision casts little light on

our problem.

With respect to § 552(a)(6), NYLAG highlights that the provision specifies

that it applies to requests made “under paragraph (1), (2), or (3)” of § 552(a) and

states that if the agency denies the request, it must “notify the person making

such request of the provisions for judicial review.” 5 U.S.C § 552(a)(6)(A). That

provision confirms that the judicial review provision applies to violations of

§ 552(a)(2). But as noted above, the BIA argues not that such violations are

unreviewable, but rather that publication is not an available remedy when the

agency is found to have violated that obligation.

Somewhat more persuasively, NYLAG points out that the judicial review

provision states that courts, in determining the scope of relief, must “accord

substantial weight to an affidavit of an agency concerning the agency’s

31
determination as to technical feasibility under paragraph (2)(C).” 5 U.S.C.

§ 552(a)(4)(B). That clause refers to an affidavit concerning the feasibility of

indicating the extent of a deletion from staff manuals and instructions to staff

made publicly available under paragraph 2(C), which, according to NYLAG,

shows that Congress anticipated that courts could order agencies to make

documents available for public inspection under the judicial review provision –

otherwise, the question of technical feasibility would have little relevance.

NYLAG is correct that the provision suggests that Congress apparently

contemplated judicial orders to agencies to comply with the obligations imposed

by provisions other than § 552(a)(3).

Even more persuasively, NYLAG argues that reading the statute as the BIA

proposes, such that the only remedy available when an agency fails to provide

records under §§ 552(a)(1) or (a)(2) duplicates the relief that the complainant

would have gotten had it instead requested copies of those records under

§ 552(a)(3), would render the proactive disclosure requirements in the first two

paragraphs merely precatory. See also ALDF, 935 F.3d at 872.

The BIA responds that its reading does not render the disclosure

requirements toothless, because the proactive disclosure requirements contain

32
their own enforcement mechanisms. Specifically, under § 552(a)(1), a person may

not be “adversely affected by” any matter that is required to be published in the

Federal Register if it has not been published, unless she has received “actual and

timely notice” of its terms. Similarly, under § 552(a)(2), an agency may not rely

on, cite as precedent, or use any unpublished “final order, opinion, statement of

policy, interpretation, or staff manual or instruction” against any party unless

that party has received “actual and timely notice” of its terms. In other words, the

BIA argues that the proactive disclosure provisions are self-enforcing, because

there is a consequence for the agency inherent in failing to comply with the

provisions: it must ensure that any party it seeks to use the materials against has

accurate and timely notice of those materials.

Although “we recognize that the last sentence in paragraph (2) does

contain a sanction, . . . we feel it was not meant to be an exclusive one.” Am. Mail

Line, Ltd. v. Gulick, 411 F.2d 696, 701 (D.C. Cir. 1969). First, the “sanction” within

§ 552(a)(2) does not ensure compliance with Congress’s command that the

agency make available all final decisions, because the BIA can easily give notice

of any unpublished decision that it seeks to use in litigation without providing

the opposing party with its many other, potentially relevant, unpublished

33
decisions.22 What’s more, given that both parties agree that Congress intended

courts to review agencies’ compliance with the affirmative obligations in

§ 552(a)(2), supra p. 20, it makes little sense to suggest that the remedy for failing

to comply with those obligations is limited to the one embodied in the provision

itself, which operates outside the scope of that judicial review. All of these

considerations confirm our conclusion that NYLAG’s position is the more

persuasive one.

C. Statutory Evolution

We next turn to the evolution of the text, and in particular to the 1974

amendment to FOIA’s remedial provision. NYLAG asserts that this, too, supports

its interpretation. We agree.

We begin by noting that the “record of enacted changes Congress made to

22
For the same reason, the dissent’s citations to Kennecott, 88 F.3d 1191, and
Northern California Power Agency v. Morton, 396 F. Supp. 1187, 1191, 1195 (D.D.C.
1975), see Dissent at 13, are not persuasive. Those cases dealt with an agency that
would be prevented from enforcing a rule that it failed to publish under
§ 552(a)(1), unless it gave actual and timely notice of the rule to the opposing
party. The sanction of requiring the agency to give notice of material on which it
wishes to rely is materially less effective when the unpublished material is a body
of precedent that can be selectively disclosed to the agency’s advantage than
when it is a rule that must be disclosed in its entirety when the agency wishes to
enforce it.

34
the relevant statutory text over time[ is] the sort of textual evidence everyone

agrees can sometimes shed light on meaning.” BNSF Ry. Co. v. Loos, 139 S. Ct.

893, 906 (2019) (Gorsuch, J., dissenting) (emphasis in original).23 “When Congress

acts to amend a statute, we presume it intends its amendment to have real and

substantial effect.” Stone v. I.N.S., 514 U.S. 386, 397 (1995). We may not adopt a

“narrow[] application” of such an amendment if it will render Congress’s efforts

“an exercise in futility.” Pierce Cty., Wash. v. Guillen, 537 U.S. 129, 145 (2003).

The remedial provision of FOIA was amended in 1974, as part of a package

of amendments to the statute. Originally, the remedial provision appeared in

§ 552(a)(3), along with the provision permitting the public to request documents.

It read:

Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency,
on request for identifiable records . . . shall make the
records promptly available to any person. On

23
Courts routinely give substantial weight to statutory history of amendment
when interpreting the text of a statute. See, e.g., Hinck v. United States, 550 U.S.
501, 503-07 (2007); Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258
(2004); Booth v. Churner, 532 U.S. 731, 739-41 (2001); see also ANTONIN SCALIA &
BRYAN A. GARNER, READING LAW : THE INTERPRETATION OF LEGAL TEXTS 256 (2012)
(“If the legislature amends or reenacts a provision other than by way of a
consolidating statute or restyling project, a significant change in language is
presumed to entail a change in meaning.”).

35
 complaint, the district court of the United States in the
district in which the complainant resides, or has his
principal place of business, or in which the agency
records are situated, has jurisdiction to enjoin the
agency from withholding agency records and to order
the production of any agency records improperly
withheld from the complainant.

5 U.S.C. § 552(a)(3) (1970). The placement of the judicial review authority in the

provision of the statute creating the right of individual members of the public to

request access to particular documents strongly suggested that the authorization

of judicial enforcement applied only to that provision of FOIA.

The 1974 amendment to the remedial provision retained the same wording

– beginning with “[o]n complaint . . .” – but moved the provision to a separate

section, § 552(a)(4)(B). The Senate Judiciary Committee Report explained that

“the original intent of Congress in enacting subsection (a)(3) [was] that the

judicial review provisions apply to requests for information under subsections

(a)(1) and (a)(2) of section 552, as well as under subsection (a)(3).” S. Rep. No. 93-

854 (1974), at 9, reprinted in H.R. Comm. on Gov’t Operations & S. Comm. on the

Judiciary, 94th Cong., Freedom of Information Act and Amendments of 1974 (P.L. 93-

502) Source Book, at 161 (1975). The Report went on to explain that a change to the

remedial provision was necessary because “[o]n occasion, the Department of

36
Justice has argued in litigation that judicial review of a denial of information

requested under subsections (a)(1) and (a)(2) was not available under the FOIA.”

Id. The Report noted that “courts have uniformly rejected this argument” and

explained that the “restructuring of subsection (a)(3) should lay this issue to rest,

making it clear that de novo judicial review is available to challenge agency

withholding under any provision in section 552.” Id.24

We place little, if any, weight on the Senate Report’s retrospective

reflection on the original intent of the Congress that enacted FOIA in 1966. But its

account of the intent behind the 1974 amendment itself is persuasive, because it

corresponds to the very change being made in the structure of the statute by that

amendment. Whether the amendment merely corrected an unintended glitch in

the original language or effected a change, there can be little doubt that by

relocating the judicial review provision Congress amended FOIA to make clear

that judicial review is available when an agency fails to comply with any

24
The Senate Report also cited with approval American Mail Line, Ltd. v. Gulick,
411 F.2d 696. In that case, the D.C. Circuit noted that “Congressional intent . . .
seems to have been that judicial review would be available for a violation of any
part of the Act” and concluded that the document in question in that case, a
memo documenting a decision adverse to a private party, was “being improperly
withheld by the Government and must be ordered to be produced for public
inspection by our district court.” Id. at 701-702 (emphasis added).

37
provision of § 552(a).

The BIA argues that its interpretation gives effect to this amendment by

allowing members of the public to seek judicial review when documents are

withheld under §§ 552(a)(1) and (a)(2), even though they must be content with

the remedy of receiving those withheld documents personally. But “[t]hat

reading gives the amendment no ‘real and substantial effect’ and, accordingly,

cannot be the proper understanding of the statute.” Pierce Cty., Wash., 537 U.S. at

145, quoting Stone, 514 U.S. at 397.25

If the only remedy available in a lawsuit for violation of §§ 552(a)(1) or

(a)(2) is that the district court can order the agency to produce the documents to

the complainant, then Congress would not have needed to clarify that judicial

review was available for violations of all three subsections. Under the original

formulation, a member of the public could request any “identifiable record”

25
The dissent contends that our interpretation “is not only novel, but contrary to
FOIA’s history,” relying on the fact that only one other circuit court has
interpreted FOIA’s remedial provision as we do here, and that one only recently.
Dissent at 16. But that argument ignores the paucity of authority on either side of
the question. With the exception of the D.C. Circuit’s decision in CREW I
(decided in 2017), which drew on its interpretation in Kennecott (decided in 1996),
the dissent points to no body of authority since 1974 supporting its interpretation
of the remedial provision.

38
under § 552(a)(3), “[e]xcept . . . records made available under paragraphs (1) and

(2).” 5 U.S.C. § 552(a)(3) (1970) (emphasis added). In other words, members of the

public could already seek identifiable documents not made available under

§§ 552(a)(1) and (a)(2) (i.e., documents required to be published by those

subsections but improperly withheld) by making a request under § 552(a)(3), and

pursuing judicial enforcement of that request if the agency denied it.

But Congress was not satisfied with that approach, and amended the

statute to clarify that judicial review was available for violations of §§ 552(a)(1)

and (a)(2) as well. Giving that amendment “real and substantial effect,” Stone, 514

U.S. at 397, and considering it in light of the remedial provision’s text and the

structure of FOIA, requires us to conclude that Congress intended to give district

courts the authority to order agencies to make documents available for public

inspection when they fail to comply with their affirmative obligations in

§ 552(a)(2).

D. Purpose

A broad reading of FOIA’s remedial provision is also consistent with the

statute’s purpose. FOIA “was enacted to facilitate public access to Government

documents.” U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991), citing John Doe

39
Agency v. John Doe Corp., 493 U.S. 146, 151 (1989). It “was designed ‘to pierce the

veil of administrative secrecy and to open agency action to the light of public

scrutiny.’” Id., quoting Dep’t. of Air Force v. Rose, 425 U.S. 352, 361 (1976). “The

affirmative portion of the Act . . . represents a strong congressional aversion to

secret (agency) law.” N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975)

(internal quotation marks omitted). Moreover, as the Supreme Court has

“repeatedly stated[,] . . . [t]he policy of the Act requires that the disclosure

requirements be construed broadly.” Dep't of Air Force, 425 U.S. at 366 (internal

citation omitted).

Here, the BIA asks us to acquiesce to just such a system of “secret agency

law” that systematically limits the access to information of parties opposing the

government in immigration proceedings. It may be that, in order to rely on an

unpublished decision in advocating against an opponent in the immigration

courts, § 552(a)(2) itself requires the government to provide a copy of that decision

to the opposing party. But that “remedy” does not achieve parity between the

parties. If that were the only available remedy for a failure to publish all non-

precedential decisions, lawyers representing the government could review the

range of unpublished decisions and select those most helpful to their position for

40
presentation to the immigration courts, while their opponents are blocked from

doing the same.

Nor does the “non-precedential” nature of the “unpublished” opinions

render them irrelevant. Every lawyer knows that the ability to cite non-binding

authority can be helpful. Such decisions can illustrate concrete examples of a

rule’s application, show that impartial judges have adopted reasoning similar to

that being advanced by the advocate, or demonstrate the continuing validity of

an old case. It is one thing to cite a binding precedent for a general proposition

and argue to the court that the logic of the general proposition applies to the

specific case before the court; it is quite another, and more persuasive, to be able

to cite specific instances in which courts have in fact applied the general principle

to cases closely resembling the instant case.26 If that were not so, parties would

never cite district court or out-of-circuit appellate authority to a court of appeals.

The BIA asks us to construe FOIA’s remedial provision narrowly. The fact

that the BIA’s narrow construction appears generally inconsistent with FOIA’s

purpose of opening government actions to public scrutiny is not itself controlling;

26
It is clear that such citations can be persuasive in immigration proceedings. See
note 8 supra.

41
no legislation pursues its general purpose to the furthest extreme, without

consideration of opposing interests. But here the narrow construction for which

the BIA argues is inconsistent with the specific requirement that Congress

enacted, after weighing the interest in open government against other competing

values. In enacting § 552(a)(2), Congress specifically directed that the BIA, like

other agencies, “make available for public inspection . . . final opinions . . . [and]

orders, made in the adjudication of cases.” In amending FOIA in 1974, Congress

made clear that the courts had the authority to enforce that provision. The BIA’s

arguments urge us to limit that enforcement to a remedy that does not in fact

require the agency to do what Congress wanted – to make a record of agency

adjudications available to the general public by general publication. Instead, the

BIA would have such records be made available only to those individual

members of the public who have the resources to seek them out.27 In effect, the

27
Such a “remedy” would replace Congress’s command that the government
make certain material generally available with a command that, in response to a
lawsuit, the agency provide copies of that material to an individual litigant,
which could then (if it were sufficiently public spirited) bear the expense of
maintaining a public repository that FOIA would have borne by the government,
or (if it were not) either hoard the information for its sole use, or make it available
to a broader audience for commercial gain. That kind of remedy would be
antithetical to the freedom of information that Congress sought in requiring
publication.

42
BIA asks us to adopt a position that would ensure that the BIA “would have no

enforceable duty to post . . . its final opinions in agency adjudication.” ALDF, 935

F.3d at 875. While Congress does not pursue a unitary purpose to the exclusion of

all other interests, the BIA (supported by the dissent) urges us to limit the judicial

review that Congress provided for the enforcement of a specific obligation

Congress imposed on it, by limiting the relief in a manner inconsistent with that

specific obligation, without suggesting any plausible countervailing interest that

would warrant such a limitation. And it would have us do so based on the less

persuasive reading of the statutory text. We decline to do so.

III. Remaining Issues

For all of the forgoing reasons, we conclude that the remedial provision of

FOIA, § 552(a)(4)(B), grants district courts the authority to order injunctive relief

to enforce § 552(a)(2), including an order requiring the agency to make records

available for public inspection in an electronic reading room. We note, however,

that that conclusion does not end the litigation.

The BIA’s motion for summary judgment argued that its non-precedential

orders are outside the coverage of § 552(a)(2), and that NYLAG’s request is

unduly burdensome. Because the district court held that it lacked jurisdiction to

43
issue NYLAG’s requested relief, it did not consider either of these arguments.

J.A. 62-63. However, the breadth of NYLAG’s request appears to have factored

into the district court’s jurisdictional holding; the court found “no authority” for

the “exceedingly broad relief” NYLAG sought. J.A. 62.

NYLAG seeks the public production of every unpublished BIA opinion

dating back to November 1, 1996, during which time the BIA issued more than

750,000 such opinions, a majority of which are said to contain confidential

information that must be redacted prior to public disclosure. J.A. 24-25, 27-28.

According to the BIA, it would take four employees working full-time nearly

seven years to prepare these opinions for publication. J.A. 30.

The breadth of NYLAG’s request and the district court’s authority to issue

relief are distinct questions that should be analyzed separately. When responding

to a FOIA request made under § 552(a)(3), “an agency need not conduct a search

that plainly is unduly burdensome,” Halpern v. F.B.I., 181 F.3d 279, 288 (2d Cir.

1999), nor need it fully comply a request that “impose[s] an unreasonable burden

upon the agency,” such as one that “require[s] the agency to locate, review,

redact, and arrange for inspection a vast quantity of material,” Am. Fed’n of Gov’t

44
Emps., Loc. 2782 v. U.S. Dep’t of Com., 907 F.2d 203, 209 (D.C. Cir. 1990).28 And the

general rule is that injunctive relief under § 552(a)(2) should be “‘no more

burdensome to the defendant than necessary to provide complete relief to the

plaintiffs.’” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994), quoting

Califano v. Yamasaki, 442 U.S. 682, 702 (1979).

A district court granting relief under § 552(a)(4)(B) should therefore craft

remedies that take into account the potentially significant burden on the agency

of complying with any such order, and work with the parties to establish realistic

timelines for compliance. The burden of producing an electronic archive of nearly

a quarter-century of past decisions – albeit a problem of the BIA’s own making by

its failure to comply with its obligations under FOIA – is far more daunting than

the burden of remedying that failure going forward. Moreover, we note that the

BIA apparently has begun a process that would facilitate publication of its more

recent unpublished decisions. Whatever period may be specified by the district

court, it would likely make sense to begin with an order requiring compliance

28
NYLAG argued below that the “‘undue burden’ analysis . . . is inapplicable to
an agency’s mandatory obligation to post records publicly under § 552(a)(2).” D.
Ct. Dkt. 30 at 18. The district court did not reach this question and we take no
position on it here.

45
going forward, and work backward from the present in setting a timetable for

making older decisions available. It may be that at some point in the process, the

burden of redacting and posting will outweigh the equitable benefits of

continued publication. NYLAG’s stated need for non-precedential opinions is to

serve clients in ongoing and future litigation. Obviously, recent BIA decisions

will typically be of more use to counsel than older ones. Recent decisions are

more likely to address current issues, and may summarize the results of earlier

cases, while older cases are more likely to deal with issues that have since been

settled in precedential opinions of the BIA or the circuit courts. An order

requiring the BIA to post a smaller subset of its unpublished decisions could

therefore very well “provide complete relief” to NYLAG. See Madsen, 512 U.S. at

765.

That said, such considerations are the stuff of decisions about the scope of

equitable relief, and rest in the sound discretion of the district court if, in the end,

relief of any sort is ordered.
CONCLUSION

For the reasons stated above, the judgment of the district court is

VACATED, and the matter is REMANDED for further proceedings consistent

with this opinion.

46
 1 PARK, Circuit Judge, dissenting:

2 The Freedom of Information Act’s judicial-review provision grants courts

3 the authority “to enjoin [an] agency from withholding agency records and to order

4 the production of any agency records improperly withheld from the

5 complainant.” 5 U.S.C. § 552(a)(4)(B). Courts have long understood this provision

6 to mean that when an agency improperly fails to produce records, courts may

7 order the production of those records to the requester.

8 Today, however, the majority discovers a new judicial remedy in FOIA’s

9 review provision, requiring not just production to the requester, but publication

10 to agency websites. To arrive at its conclusion, the majority invokes the traditional

11 tools of statutory interpretation—textual “parsing,” structural analysis, and

12 statutory history. But the majority’s approach reads a single phrase expansively

13 (“to enjoin [an] agency from withholding agency records”), which ultimately

14 divorces it from what I think is a more straightforward understanding of the text,

15 structure, and history of the statute.

16 First, the text of the review provision’s two phrases should be read together,

17 as mutually reinforcing, rather than as separate and independent grants of

18 authority. Specifically, the provision permits courts to order agencies to stop
 1 withholding records and to produce them to complainants. In other words, the

2 second phrase (requiring production to the complainant) specifies and

3 complements the first (enjoining withholding). While this reading contains some

4 redundancy, it gives effect to all parts of the provision. In contrast, the majority’s

5 novel interpretation treats the two as distinct remedial powers and allows the first

6 phrase to swallow the second.

7 The statutory structure also makes clear that the complainant, and not the

8 general public, is the intended beneficiary of FOIA’s judicial remedies. That is

9 why the judicial-review provision allows courts to remedy informational injuries

10 to particular requesters, not to enforce general agency compliance with the statute.

11 The majority’s approach, however, reads into the review provision a new form of

12 relief that expands courts’ remedial power beyond the parties before them.

13 Finally, the statutory history highlights that Congress did not put the

14 majority’s remedy into the text of FOIA in 1966 or create it merely by reorganizing

15 the statute in 1974. And no appellate court found otherwise for 45 years.

16 For these reasons, I would join the D.C. Circuit in holding that the only relief

17 available under FOIA’s judicial-review provision is the production of agency

18 records to the plaintiff. I respectfully dissent.

2
 1 I. BACKGROUND

2 FOIA provides that government agencies “shall make available to the

3 public” information falling into three categories. 5 U.S.C. § 552(a). First, agencies

4 must publish certain records in the Federal Register, including agency rules and

5 procedures. Id. § 552(a)(1). Second, agencies must make other specified records,

6 including “final opinions” and “orders” that are “made in the adjudication of

7 cases,” “available for public inspection in an electronic format.” Id. § 552(a)(2).

8 Third, for remaining agency records not otherwise exempt from disclosure, the

9 statute requires that “upon any request” that “reasonably describes such records”

10 and “is made in accordance with published rules,” the agency “shall make the

11 records promptly available to any person.” Id. § 552(a)(3)(A).

12 FOIA includes detailed procedures that agencies must follow in responding

13 to “request[s] for records made under” the three disclosure provisions, including

14 time limits and a right of administrative appeal. Id. § 552(a)(6). After exhausting

15 administrative remedies, a requester denied access to records may seek relief in

16 court under FOIA’s private right of action, which provides:

17 On complaint, the district court of the United States in the district in
18 which the complainant resides, or has his principal place of business,
19 or in which the agency records are situated, or in the District of
20 Columbia, has jurisdiction to enjoin the agency from withholding

3
 1 agency records and to order the production of any agency records
2 improperly withheld from the complainant.

3 Id. § 552(a)(4)(B).

4 In 1974, Congress amended FOIA to move the judicial-review provision

5 from subsection (a)(3) to (a)(4). Act of Nov. 21, 1974, Pub. L. No. 93-502, 88 Stat.

6 1561. This was a reorganization, not a substantive alteration, and the provision’s

7 operative language has remained unchanged since FOIA’s passage in 1966.

8 Here, NYLAG does not seek the well-established remedy for violations of

9 FOIA’s disclosure obligations—an injunction requiring an agency to produce

10 described records to the requester. Indeed, NYLAG expressly disclaims that

11 remedy, seeking instead a court order forcing the agency to post a searchable

12 database of records to its website. App’x at 12–13 (NYLAG’s complaint,

13 explaining that its “request was for the electronic public posting of unpublished

14 BIA decisions . . . , not for the production of unpublished BIA decisions to

15 NYLAG”). As the majority notes, the scope of NYLAG’s request is staggering,

16 covering hundreds of thousands of non-precedential BIA opinions totaling more

17 than a million pages; the BIA estimates that compliance with the request would

18 take four full-time workers nearly seven years just to apply redactions to the

19 requested records. See App’x at 28–31.

4
 1 II. DISCUSSION

2 A. FOIA Does Not Authorize the Relief NYLAG Seeks

3 1. Statutory Text

4 The majority discovers a new publication remedy in FOIA’s judicial-review

5 provision, which gives courts “jurisdiction to enjoin [an] agency from withholding

6 agency records and to order the production of any agency records improperly

7 withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). To reach this result, the

8 majority adopts a strained interpretation of the statutory text, which is more

9 naturally read to limit courts’ remedial authority to ordering the production of

10 records to requesters.

11 First, the two phrases of the judicial-review provision should be read

12 together as two aspects of the same remedy: (1) an order to stop withholding, and

13 (2) a requirement to produce the materials withheld. Although they are

14 redundant, they are reinforcing. “Sometimes the better overall reading of the

15 statute contains some redundancy,” Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct.

16 873, 881 (2019), and Congress commonly “employ[s] a belt and suspenders

17 approach,” Atl. Richfield Co. v. Christian, 140 S. Ct. 1335, 1350 n.5 (2020). That is

18 precisely what Congress did with FOIA’s review provision. The second part of

5
 1 the provision clarifies the first, giving courts explicit guidance about the specific

2 form the remedy should take. Put differently, the first phrase is a negative

3 command (“to enjoin . . . from withholding”), and the second is a positive one (“to

4 order the production”) that explains how to accomplish the former.

5 According to the majority, the interpretations offered by the parties each

6 render one part of the review provision superfluous, so the arguments “cancel

7 each other out.” Maj. Op. at 26. But that approach overlooks what is lost in each

8 side’s interpretation. Under the BIA’s reading, the phrases are redundant but

9 reinforce Congress’s intent by removing doubt. Under NYLAG and the majority’s

10 reading, however, the first phrase swallows the second; if authority “to enjoin the

11 agency from withholding records” means courts may require agencies to make

12 records available in any number of ways, Congress had no reason to also give

13 courts the authority “to order the production” of such records to “the

14 complainant.” The two interpretations are thus not equally superfluous. The

15 better reading is the agency’s, which uses redundancy to reinforce meaning, and

16 not the majority’s, which renders one phrase entirely meaningless.

17 Second, stating that courts have “jurisdiction to enjoin the agency from

18 withholding agency records” would be an odd way for Congress to grant courts

6
 1 authority to enforce compliance with the reading-room requirement of subsection

2 (a)(2). In fact, the use of the negative framing coupled with the positive remedy of

3 production to the complainant is another point in favor of the agency’s

4 interpretation: The two parts are complementary, with the first emphasizing the

5 prohibited conduct and the second clarifying the form of relief. If Congress

6 wanted to create a new, separate equitable power to order publication of records,

7 it could have been more explicit—as indeed it was when specifying that courts

8 could order the “production of any agency records improperly withheld.”

9 Third, the majority’s reading unnaturally segregates the two parts of the

10 judicial-review provision. The majority declines to limit subsection (a)(4)(B) to

11 “withholding . . . from the complainant” based on the absence of a comma that

12 would have made clearer that “from the complainant” applies to both parts of the

13 subsection. Maj. Op. at 25–26. This focus on punctuation misses the forest for the

14 trees. The majority pairs the first part of subsection (a)(4)(B) with subsections

15 (a)(1) and (a)(2) to create a private right of action by any complainant to order

16 production online on behalf of the public. But it limits the second half of

17 subsection (a)(4)(B) to improper withholding from individual complainants under

18 subsection (a)(3). I would not extract so much meaning from a missing comma.

7
 1 To the contrary, Congress used the word “withhold” twice, and a natural

2 reading would give it the same indirect object (the “complainant”) both times. See

3 Paroline v. United States, 572 U.S. 434, 447 (2014) (“When several words are

4 followed by a clause which is applicable as much to the first and other words as to

5 the last, the natural construction of the language demands that the clause be read

6 as applicable to all.” (citation omitted)). After noting that courts have the power

7 “to enjoin [an] agency from withholding agency records,” the review provision

8 directs courts “to order the production of any agency records improperly withheld

9 from the complainant.” 5 U.S.C. § 552(a)(4)(B). Both phrases refer to agency

10 “withholding” of records, a usage that suggests the party from which the records

11 have been withheld is a particular requester. Indeed, the statute elsewhere

12 differentiates between “withholding” records and failing to make them publicly

13 available. See id. § 552(d) (FOIA “does not authorize withholding of information

14 or limit the availability of records to the public, except as specifically stated” in the

15 statute (emphasis added)). “A term appearing in several places in a statutory text

8
 1 is generally read the same way each time it appears.” Milner v. Dep’t of Navy,

2 562 U.S. 562, 570 (2011) (citation omitted). 1

3 As the majority concedes, its decision is in conflict with the D.C. Circuit’s

4 holding in Citizens for Responsibility & Ethics in Washington v. United States

5 Department of Justice (“CREW I”), 846 F.3d 1235 (D.C. Cir. 2017), that the only

6 remedy available through FOIA’s judicial-review provision is the production of

7 records to the requester. CREW I was consistent with the statutory text, and I

8 would follow the D.C. Circuit’s approach. See Whitaker v. Dep’t of Com., 970 F.3d

9 200, 206 (2d Cir. 2020) (noting the D.C. Circuit’s “particular FOIA expertise”).

10 The majority finds CREW I unpersuasive because the D.C. Circuit “spent

11 little time parsing the text of the statute.” Maj. Op. at 16. But in CREW I, the D.C.

12 Circuit relied on its prior decision in Kennecott Utah Copper Corp. v. United States

13 Department of Interior, 88 F.3d 1191 (D.C. Cir. 1996), which did engage in such an

14 analysis. See CREW I, 846 F.3d at 1243; Kennecott, 88 F.3d at 1202–03. The majority

15 casts this reliance as a deficiency, dismissing CREW I on the ground that the D.C.

1 Similarly, only the second phrase describes “improper” withholding, while the first is
silent about what kind of withholding courts may enjoin. Of course, FOIA permits agencies to
withhold certain records. See 5 U.S.C. § 552(b) (setting out exemptions from disclosure). The
second phrase thus explains the type of withholding that may be enjoined and specifies the
remedy for such improper withholding—production to the complainant. The point is that these
phrases are not two separate authorizations; they are best read together.

9
 1 Circuit was bound by its prior decision in Kennecott. Maj. Op. at 17. But the

2 majority hardly grapples with Kennecott, which considered the text of the statutory

3 disclosure provision (in that case, subsection (a)(1)) and the judicial-review

4 provision. See Kennecott, 88 F.3d at 1203. In other words, the majority faults

5 CREW I for inadequate textual parsing and for relying on another case, when that

6 other case did that textual parsing. 2

7 In Kennecott, the D.C. Circuit carefully analyzed the statutory text and

8 concluded that Congress did not intend the term “production” to include

9 “publication.” 88 F.3d at 1203. It correctly noted that, although Congress required

10 agencies to publish documents in subsection (a)(1), that requirement does not

11 necessarily mean that Congress also gave courts the authority to order compliance.

12 Id. at 1202–03 (“While it might seem strange for Congress to command agencies to

13 ‘currently publish’ or ‘promptly publish’ documents, without in the same statute

2 The majority also suggests that the D.C. Circuit has since disavowed the holding of
CREW I because, in a later opinion, it “construed CREW I narrowly as turning on the fact that the
plaintiff ‘improperly brought its claim under the Administrative Procedure Act, 5 U.S.C. § 704,
instead of FOIA’s judicial-review provision.’” Maj. Op. at 18 (quoting Citizens for Resp. & Ethics
in Wash. v. U.S. Dep’t of Justice (“CREW II”), 922 F.3d 480, 485 (D.C. Cir. 2019)). But CREW II does
not cite CREW I in its analysis; the quoted statement comes from the background description of
why the district court dismissed the complaint in CREW I. See CREW II, 922 F.3d at 485. There is
thus no basis for the majority’s reading of CREW II as an expression of “reservations about
[CREW I’s] interpretation of the remedial provision.” Maj. Op. at 17.

10
 1 providing courts with power to order publication, we think that is exactly what

2 Congress intended.”). I would take the same approach.

3 2. Statutory Structure

4 Congress did not include in FOIA the enforcement authority the majority

5 divines from the review provision. That omission makes sense in light of the three

6 ways Congress did provide for courts to address agency non-compliance with

7 FOIA’s disclosure obligations: Courts may (1) require the production of records

8 to a particular complainant, (2) refer matters to the Office of Special Counsel for

9 further investigation, and (3) prohibit agency reliance on undisclosed records.

10 Each of these mechanisms is consistent with the individual nature of the judicially

11 enforceable rights asserted by FOIA plaintiffs. See Kennecott, 88 F.3d at 1203

12 (holding that FOIA’s judicial-review provision “is aimed at relieving the injury

13 suffered by [an] individual complainant, not by the general public”).

14 First, production to the complainant redresses the informational injury

15 FOIA’s judicial-review provision was enacted to protect. This objective can be

16 seen most clearly in the provision’s interaction with FOIA’s overall request

17 procedure. All FOIA claims begin with a “request to [an] agency for records under

18 paragraph (1), (2), or (3)”—i.e., records arguably covered by FOIA’s three

11
 1 disclosure categories. 5 U.S.C. § 552(a)(6)(C)(i). If an agency determines that it

2 will “comply with” a request, it must make the records “promptly available to

3 such person making such request.” Id. The statute thus contemplates that a

4 successful FOIA request will result in production to an individual requester. It

5 follows that the judicial-review provision—which is relevant only if an agency fails

6 to comply with a request—should offer the same relief. The majority’s reading,

7 however, would order disclosure not only to the complainant but also to the

8 general public. This interpretation is inconsistent with the statutory structure

9 because it disconnects the review provision from the request procedure.

10 Second, Congress included in FOIA a Special Counsel provision triggered

11 by harms to individual requesters, not the general public. Courts may refer

12 matters involving improper withholding to the Office of Special Counsel only

13 when they “order[] the production of any agency records improperly withheld

14 from the complainant.” Id. § 552(a)(4)(F)(i) (emphasis added). This is a puzzling

15 limitation if, as the majority holds, the judicial-review provision also authorizes

16 courts to order agencies to publish records on the internet for the benefit of the

17 public at large. Under a commonsense reading of the review provision, however,

12
 1 courts are limited to providing remedies to the plaintiffs before them, so Congress

2 had no need to extend courts’ referral authority to other contexts.

3 Third, Congress imposed a judicially enforceable sanction for agency

4 failures to publish records as required, thus furthering the reading-room

5 provision’s objective of protecting individuals from “secret law.” Records that

6 must be made available to the public under subsection (a)(2) “may be relied on,

7 used, or cited as precedent by an agency against a party other than an agency only

8 if” they are published electronically or “the party has actual and timely notice of

9 the terms thereof.” Id. § 552(a)(2). This prohibition and the corresponding

10 prohibition on the use of unpublished records in subsection (a)(1) give agencies a

11 “powerful incentive” to comply with their affirmative disclosure obligations.

12 Kennecott, 88 F.3d at 1203. And if an agency fails to publish records as required,

13 plaintiffs can seek relief in court. See, e.g., N. Cal. Power Agency v. Morton, 396 F.

14 Supp. 1187, 1191, 1195 (D.D.C. 1975) (setting aside agency action based on

15 unpublished rules of which the plaintiff had no notice), aff’d sub nom. N. Cal. Power

16 Agency v. Kleppe, 539 F.2d 243 (D.C. Cir. 1976). The majority is thus incorrect to

17 assert that a limited reading of FOIA’s judicial-review provision “render[s] the

18 proactive disclosure requirements . . . merely precatory.” Maj. Op. at 33.

13
 1 The majority argues that the prohibition on using unpublished records does

2 not prevent agencies from engaging in gamesmanship by selectively releasing

3 records. Id. at 34. As proof, the majority cites a handful of instances in which the

4 BIA has cited unpublished decisions. Id. at 9 nn.7-8. Such a sampling provides

5 little empirical insight into the scope of the asserted problem. But even assuming

6 for the sake of argument that the majority is correct, the efficacy of the enforcement

7 mechanism does not bear on the question of statutory interpretation. See Nw.

8 Airlines, Inc. v. Transp. Workers Union, 451 U.S. 77, 97 (1981) (“[T]he authority to

9 construe a statute is fundamentally different from the authority to fashion a new

10 rule or to provide a new remedy which Congress has decided not to adopt.”).

11 3. Statutory History

12 As part of its reorganization of FOIA in 1974, Congress moved the judicial-

13 review provision from subsection (a)(3) to a separate subsection, (a)(4)(B). The

14 majority states that this change reflected Congress’s intent “to make clear that

15 judicial review is available when an agency fails to comply with any provision of

16 § 552(a).” Maj. Op. at 38. Asserting that judicial review was always available for

17 failures to produce records under subsections (a)(1) and (a)(2), the majority

18 reasons that the amendment must have done something more, and concludes it

14
 1 granted “district courts the authority to order agencies to make documents

2 available for public inspection.” Id. at 38–40.

3 This reads too much into the statutory history. Providing for judicial review

4 is not the same as expanding the scope of courts’ remedial authority, and the

5 majority points to nothing else supporting its inferential leap. Indeed, the Senate

6 report on which the majority relies states that the amendment was intended to

7 clarify, rather than change, the scope of the judicial-review provision. 3 See S. Rep.

8 No. 93-854, at 8–9 (1974) (explaining that the amendment was intended to “lay . . .

9 to rest” any misconception that “judicial review of a denial of information

10 requested under subsections (a)(1) and (a)(2) was not available under the FOIA”).

11 If Congress had intended in 1974 to grant courts new authority to enforce

12 compliance with subsections (a)(1) and (a)(2), it could have changed the

13 provision’s operative language to grant that power explicitly. For example, it

14 could have authorized courts “to enjoin the agency from withholding agency

15 records and to order compliance with respect to subsections (a)(1) and (a)(2), and to

3 The 1974 reorganization clarified that judicial review is available for requests for records
described in each of FOIA’s three disclosure categories, addressing the view of some agencies
that judicial review covered only requests for records described in subsection (a)(3). See S. Rep.
No. 93-854, at 8 (1974) (noting that “[o]n occasion” the Department of Justice had taken that
position in litigation).

15
 1 order the production of any agency records improperly withheld from the

2 complainant with respect to subsection (a)(3).” But Congress did not do that, and the

3 1974 amendment did not change a word of the judicial-review provision. Instead,

4 it simply moved the provision to a new subsection, making clear that judicial

5 review is available for denials of requests for records described in each of FOIA’s

6 disclosure categories. That reorganization cannot reasonably be read as creating

7 a new remedy for such violations.

8 Finally, for 45 years, no appellate court held that the 1974 amendment did

9 what the majority says it did. The Ninth Circuit in 2019 was the first to find that

10 Congress had given courts the equitable authority to order compliance with

11 subsections (a)(1) and (a)(2) back in 1974. See Animal Legal Def. Fund v. U.S. Dep’t

12 of Agric., 935 F.3d 858 (9th Cir. 2019). This suggests that the majority’s statutory

13 interpretation is not only novel, but contrary to FOIA’s history.

14 B. Additional Relief Is Not Available Under the APA

15 NYLAG argues that even if it could not obtain injunctive relief through

16 FOIA, it could still do so through 5 U.S.C. § 704, the Administrative Procedure

17 Act’s general review provision. The majority did not need to reach this question,

18 and I note only briefly that the APA would not separately provide the relief

16
 1 NYLAG seeks. “Congress did not intend the general grant of review in the APA

2 to duplicate existing procedures for review of agency action,” and the APA thus

3 “does not provide additional judicial remedies in situations where the Congress

4 has provided special and adequate review procedures.” Bowen v. Massachusetts,

5 487 U.S. 879, 903 (1988) (cleaned up). Plaintiffs cannot obtain relief under § 704

6 where a statutory review provision allows courts to grant remedies of the “same

7 genre,” see, e.g., Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009), or permits de

8 novo review of agency action in federal district court, see, e.g., El Rio Santa Cruz

9 Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265,

10 1270 (D.C. Cir. 2005).

11 FOIA’s judicial-review provision meets both standards. Plaintiffs

12 dissatisfied with an agency’s response to a FOIA request can seek plenary review

13 in an Article III court with equitable authority to compel production of agency

14 records. See 5 U.S.C. § 552(a)(4)(B) (“[T]he court shall determine the matter de

15 novo . . . .”). And the remedy of direct production to NYLAG is of the “same

16 genre” as online publication by the BIA, because it would fully resolve any

17 informational injury caused by NYLAG’s inability to access agency records. There

18 is thus “no yawning gap between the relief FOIA affords and the relief [NYLAG]

17
 1 seeks under the APA”—although “courts lack authority under FOIA to order

2 agencies to make records available for public inspection,” NYLAG itself can still

3 “gain access to all the records it seeks.” CREW I, 846 F.3d at 1246 (cleaned up).

4 Moreover, “[t]he creation of both agency obligations and a mechanism for judicial

5 enforcement in the same legislation suggests that FOIA itself strikes the balance

6 between statutory duties and judicial enforcement that Congress desired.” Id. at

7 1245. Direct production of records under FOIA’s judicial-review provision is the

8 sole form of relief available to NYLAG.

9 III. CONCLUSION

10 The majority today finds in FOIA’s judicial-review provision an authority

11 that is (1) not stated expressly in the statutory text, (2) inconsistent with the

12 statutory structure, and (3) unsupported by the statutory history. By following the

13 Ninth Circuit’s decision in Animal Legal Defense Fund instead of the D.C. Circuit’s

14 decisions in CREW I and Kennecott, the majority joins the wrong side of a circuit

15 split that the Supreme Court will need to resolve. FOIA plaintiffs can now sue in

16 New York and California (avoiding D.C. Circuit precedent) to compel agency

17 action in Washington, D.C. This state of affairs makes little sense.

18 For these reasons, I respectfully dissent.

18