Cause of Action Inst. v. U.S. Dep't of Commerce

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CAUSE OF ACTION INSTITUTE, Plaintiff, v. U.S. DEPARTMENT OF COMMERCE Defendant.

No. 19-cv-2698 (DLF)

United States District Court, District of Columbia

September 12, 2022

MEMORANDUM OPINION

DABNEY L. FRIEDRICH UNITED STATES DISTRICT JUDGE

Cause of Action Institute brings this suit alleging that the Department of Commerce has engaged in a policy or practice of violating the Freedom of Information Act (FOIA), 5 U.S.C § 552 et seq. In particular, the plaintiffs challenge Commerce's practice of invoking executive privilege to withhold documents involving Section 232 of the Trade Expansion Act of 1962. Compl. ¶ 2, Dkt. 1. Before the Court is Cause of Action's Motion for Summary Judgment, Dkt. 43, and Commerce's Cross-Motion for Summary Judgment, Dkts. 50, 55. For the reasons that follow the Court will deny Cause of Action's motion and grant Commerce's cross-motion.

I. BACKGROUND

On April 15, 2019, Cause of Action submitted identical FOIA requests to two offices within Commerce, seeking two documents. See Def.'s Rev. Stmt. of Material Facts ¶ 8, Dkt. 53. First, Cause of Action requested “a copy of the Commerce Secretary's final report to the President regarding the Section 232 Investigation on the Effect of Imports of Uranium on the National Security” (Uranium Report); and second, it sought the “DOD response letter to the Section 232 Investigation on the Effect of Imports of Uranium on the National Security” (DOD response letter). Id.; see also Second Agyekum Decl. Ex. 6 at 1, Dkt. 48.

Both documents relate to Section 232 of the Trade Expansion Act, which requires the Secretary of Commerce, by request or on his own motion, to investigate the national security effects flowing from the importation of an article of commerce. 19 U.S.C. § 1862(b). Within 270 days after initiating an investigation, the Secretary of Commerce must submit a report to the President containing the investigation's “findings” and his “recommendations . . . for action or inaction.” Id. § 1862(b)(3)(A). In preparing the report, the Secretary of Commerce must “consult with the Secretary of Defense regarding the methodological and policy questions raised in any investigation” and “seek information and advice from, and consult with,” other officers and cabinet members. Id. § 1862(b)(2)(A)(i)-(ii). The Secretary of Commerce can also “request” that the Secretary of Defense “provide . . . an assessment of the defense requirements” of the article under investigation. Id. § 1862(b)(2)(B).

Once the President receives a report finding a national security threat, within 90 days, he must review it and determine whether he concurs with its findings. Id. § 1862(c)(1)(A). If so, he must also decide whether to take action “to adjust the imports of the article,” id. § 1862(c)(1)(A)(ii), which may include “negotiation of an agreement which limits or restricts” imports, id. § 1862(c)(3)(A), to mitigate the national security threat.

Section 232 also has multiple provisions related to publication. First, it provides that “[a]ny portion of the report submitted by the Secretary . . . which does not contain classified information or proprietary information shall be published in the Federal Register.” Id. § 1862(b)(3)(B). It next specifies that within 30 days of his determination, the President must submit a “written statement” to explain his decision, which “shall be included in the report published” by the Secretary of Commerce. Id. § 1862(c)(2). It also provides that “[u]pon the disposition of each request [for an investigation], . . . the Secretary shall submit to the Congress, and publish in the Federal Register, a report on such disposition.” Id. § 1862(d)(1).^[1]

Commerce submitted the Uranium Report to the President on April 14, 2019. Lieberman Decl. ¶ 6, Dkt. 17-1. On July 12, 2019, the President issued a Presidential Memorandum, disagreeing with Secretary of Commerce's finding that uranium imports threatened to impair the national security of the United States. But the President noted that he agreed with the Secretary's determination that the issue had national security implications warranting further evaluation. Id. ¶ 7. As a result, instead of acting pursuant to Section 232, the President established a “Nuclear Fuel Working Group” to provide a “fuller analysis of the national security considerations with respect to the entire nuclear fuel supply chain” and “address the concerns identified by the Secretary.” Mem. on the Effect of Uranium Imports on the National Security and Establishment of the United States Nuclear Fuel Working Group § 1(c), id. Ex. 6. As required by Section 232, on August 8, 2019, the President provided a written statement to Congress explaining why he refused to take action. See Donald J. Trump, Letter to Congressional Leaders on the Effect of Uranium Imports on the National Security and Establishment of the United States Nuclear Fuel Working Group, August 8, 2019, Mulvey Decl. Ex. C, Dkt. 18-4.

Cause of Action submitted its FOIA request for the Uranium Report and the DOD response letter on April 15, 2019, the day after the report was submitted to the President. See Second Agyekum Decl. ¶ 11. Commerce responded that it would “provide all non-exempt documents responsive” to Cause of Action's request and explained that the report would be published in the Federal Register “after the President's review is complete.” See Letter from Fernandez Boards dated May 16, 2019, id. Ex. 7. Subsequently, Commerce informed Cause of Action that it would withhold the Uranium Report under FOIA Exemption 5, see 5 U.S.C. § 552(b)(5), claiming the documents were exempt from FOIA's disclosure requirements under the presidential communications privilege and the deliberative process privilege. Second Agyekum Decl. ¶ 14.

Cause of Action filed its complaint on September 9, 2019, seeking production of the two documents and challenging Commerce's alleged “policy or practice” of unlawfully withholding Section 232 reports. See Compl. ¶ 1-2. On March 5, 2020, Commerce filed a Motion for Summary Judgment, Dkt. 17, and Cause of Action filed a Cross-Motion for Summary Judgment on April 3, 2020, Dkt. 18. Before the Court resolved those motions, Commerce voluntarily released both the Uranium Report and the DOD response letter. See Joint Status Report of August 26, 2021 ¶ 2-3, Dkt. 41. Accordingly, the Court denied both parties' motions for summary judgment without prejudice. Minute Order of August 5, 2021.

Cause of Action subsequently filed a new Motion for Summary Judgment on November 19, 2021, pressing its policy-or-practice claim. Dkt. 43. Commerce filed a Cross-Motion for Summary Judgment on February 3, 2022. Dkts. 50, 55.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When a federal agency moves for summary judgment in a FOIA case, all facts and inferences must be viewed in the light most favorable to the requester, and the agency bears the burden of showing that it complied with FOIA. Chambers v. Dep't of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009).

To prevail under Rule 56, a federal agency “must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [FOIA's] inspection requirements.” Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam) (internal quotation marks omitted). “The system of disclosure established by the FOIA is simple in theory[:] [a] federal agency must disclose agency records unless they may be withheld pursuant to one of the nine enumerated exemptions listed in [5 U.S.C.] § 552(b).” Dep't of Just. v. Julian, 486 U.S. 1, 8 (1988). “The agency bears the burden of justifying the applicability of [any] FOIA exemptions, which are exclusive and must be narrowly construed.” Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015).

Federal courts rely on agency affidavits to determine whether an agency complied with FOIA. Perry, 684 F.2d. at 126. Agency affidavits are entitled to a presumption of good faith, SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and a court may grant summary judgment based on an affidavit if it contains reasonably specific detail and is not called into question by contradictory record evidence or evidence of bad faith, Judicial Watch v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013). “[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

III. ANALYSIS

A. Standing

Before reaching the merits, the Court must determine whether Cause of Action has Article III standing. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-95 (1998). Although there is no dispute that Cause of Action had standing to bring its FOIA claim in the first instance, Commerce argues that the claim became moot once it produced the two documents Cause of Action sought. See Def.'s Mem. in Supp. of Summ. J. at 8-9, Dkt. 48. This contention is without merit.

As a general matter, it is “true that . . . once all requested records are surrendered, federal courts have no further statutory function to perform with respect to the particular records that were requested.” Payne Enters., Inc. v. United States, 837 F.2d 486, 490-91 (D.C. Cir. 1988) (internal quotation marks omitted). But it is likewise well-established that “even though a party may have obtained relief as to a specific request under the FOIA, this will not moot a claim that an agency policy or practice will impair the party's lawful access to information...