Baker & Hostetler LLP v. United States Department of Commerce

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2006 Decided December 22, 2006

No. 05-5185

BAKER & HOSTETLER LLP,

APPELLANT

v.

UNITED STATES DEPARTMENT OF COMMERCE,

APPELLEE

Consolidated with

05-5350

Appeals from the United States District Court

for the District of Columbia

(No. 02cv02522)

Mark A. Cymrot argued the cause for appellant. With him

on the briefs were Elliot J. Feldman and Michael S. Snarr.

Claire M. Whitaker, Assistant U.S. Attorney, U.S.

Attorney’s Office, argued the cause for appellee. With her on

the brief were Kenneth L. Wainstein, U.S. Attorney at the time

the brief was filed, and Michael J. Ryan, Assistant U.S.

Attorney. R. Craig Lawrence, Assistant U.S. Attorney,

entered an appearance.

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Before: HENDERSON, GARLAND and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH

in which Circuit Judge GARLAND joins and Circuit Judge

HENDERSON joins as to Parts I-IV.

Opinion dissenting in part filed by Circuit Judge

HENDERSON.

KAVANAUGH, Circuit Judge: This Freedom of Information

Act appeal is a footnote to the long trade dispute in which the

United States and American softwood lumber companies have

raised complaints about alleged unfair trade practices by the

Canadian Government and Canadian softwood lumber exporters.

The United States and Canada recently settled the trade

disagreement, but this FOIA case lives on.

In 2002, the Department of Commerce imposed duties on

imports of Canadian softwood lumber to the United States

(duties that have since been rescinded as a result of the recent

bilateral settlement). Later in 2002, the law firm Baker

Hostetler, which represents Canadian softwood lumber

companies, filed requests and a lawsuit under the Freedom of

Information Act to obtain documents from the Department of

Commerce related to the Department’s investigation of

Canadian softwood lumber imports. At issue in this appeal are

17 third-party letters that the Department had received from

American lumber companies; the Department claimed FOIA

Exemption 4, which covers confidential commercial information

provided by outside parties to the Government. Also at issue are

51 sets of internal Department notes; the Department claimed

FOIA Exemption 5, which applies to privileged government

documents. The District Court concluded that the Department

properly withheld the documents under those FOIA exemptions.

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Applying settled legal principles to the unusual facts of this

case, we affirm the District Court’s judgment with respect to the

17 third-party letters, we affirm with respect to one of the 51

sets of notes, and we reverse and remand for further proceedings

with respect to 50 of the 51 sets of notes.

The Department has provided Baker Hostetler numerous

other softwood-lumber-related documents that are not at issue

on appeal. Because of its success in obtaining those documents,

the firm argues it is a “complainant” that “substantially

prevailed” in the overall FOIA litigation – meaning that it may

receive attorney’s fees from the Department under FOIA. See

5 U.S.C. § 552(a)(4)(E). The District Court denied Baker

Hostetler’s fee request, reasoning that the law firm is

representing itself and thus is ineligible for fees. The plain

language of the FOIA attorney’s fees provision does not contain

such an exception, however, and the Supreme Court has stated

that an organization remains eligible for attorney’s fees even

when it represents itself in litigation. See Kay v. Ehrler, 499

U.S. 432, 436 n.7 (1991). Two other Courts of Appeals have

interpreted Kay to allow fees for a law firm representing itself.

We agree with those courts and therefore reverse and remand for

further proceedings on the attorney’s fees issue; on remand, the

District Court will determine whether Baker Hostetler

“substantially prevailed” and is entitled to fees.

I

1. In the Tariff Act of 1930, Congress authorized the

Department of Commerce to investigate (i) imports to the

United States that are subsidized by foreign governments and

(ii) dumping by foreign importers, which occurs when foreign

companies sell their products in the United States at prices lower

than in other markets. Pub. L. No. 71-361, 46 Stat. 590

(codified as amended at 19 U.S.C. §§ 1202 et seq.); see 19

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U.S.C. §§ 1671(a), 1671a, 1673, 1673a. To counteract such

trade practices by foreign governments and companies, the

Department may impose countervailing and antidumping duties

on goods imported into the United States. Id. §§ 1671d, 1673d.

If duties are imposed, the affected foreign company may

challenge the duties by seeking judicial review in the Court of

International Trade. Id. § 1516a(a).

During the course of an investigation of subsidies to or

dumping by foreign importers, the Department must maintain a

public record of certain meetings between Department officials

and outside parties (those are known as “ex parte meetings”).

See id. § 1677f(a)(3); Department’s Br. at 10 (Act requires

Department to “create for the public record memoranda that

recount” certain ex parte meetings). If the meeting is an ex parte

meeting covered by the statute, the Department must list: the

identity of persons present at the meeting; the date, time, and

place of the meeting; and a summary of the matters discussed.

19 U.S.C. § 1677f(a)(3). By regulation, the Department keeps

this public record in its Central Records Unit. See 19 C.F.R. §

351.104(b) (2006).

In any lawsuit challenging the imposition of duties, the

Court of International Trade bases its review on the full official

record assembled during the investigation. See 19 U.S.C. §

1516a(b)(1)(B)(i), 1516a(b)(2)(A); see also 19 C.F.R. §

351.104(a)(1) (“For purposes of [19 U.S.C. § 1516a(b)(2)], the

record is the official record of each segment of the

proceeding.”). That record includes “a copy of all information

presented to or obtained by the Secretary, the administering

authority, or the [International Trade] Commission during the

course of the administrative proceeding . . . .” 19 U.S.C. §

1516a(b)(2)(A)(i). However, “[t]he confidential or privileged

status accorded to any documents, comments, or information

shall be preserved in any action” challenging an antidumping or

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countervailing duty determination, although “the court may

examine, in camera, the confidential or privileged material, and

may disclose such material under such terms and conditions as

it may order.” Id. § 1516a(b)(2)(B).

2. In early 2002, after an investigation, the Department of

Commerce announced its decision to impose duties on imports

of Canadian softwood lumber. The law firm Baker Hostetler,

which represents Canadian softwood lumber companies, then

submitted two Freedom of Information Act requests for a variety

of Department of Commerce documents related to the

investigation.

The Department turned over a large number of responsive

records, but it withheld some that it deemed to fall within

FOIA’s exemptions. As relevant here, the parties’ disagreement

concerned two specific groups of withheld records: 17 third-

party letters sent to the Department by a representative of

American lumber companies; and 51 sets of internal notes of

meetings between Department officials and outsiders.

As to the 17 third-party letters, the Department invoked

FOIA Exemption 4, which protects “trade secrets and

commercial or financial information obtained from a person and

privileged or confidential.” 5 U.S.C. § 552(b)(4). Baker

Hostetler argued that Exemption 4 did not apply because the

letters were not “commercial” within the meaning of FOIA. It

also maintained that the letters were not “confidential” within

the meaning of Exemption 4 because the Tariff Act requires the

Department to include letters submitted in connection with the

investigation in the official record assembled for judicial review.

See 19 U.S.C. § 1516a(b)(2)(A). The District Court determined

that the letters were properly withheld. The court concluded that

the letters contain confidential commercial information within

the meaning of Exemption 4 and were submitted in connection

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with bilateral trade negotiations – not in connection with the

Department’s investigation of the Canadian companies – and

thus were not subject to the Tariff Act’s official record

provision.

As to the 51 sets of meeting notes, the Department

contended that they were protected by FOIA Exemption 5,

which covers “inter-agency or intra-agency memorandums or

letters which would not be available by law to a party . . . in

litigation with the agency.” 5 U.S.C. § 552(b)(5). That

exemption incorporates the deliberative process component of

executive privilege and protects agency documents that are pre-

decisional and deliberative. See Judicial Watch, Inc. v. FDA,

449 F.3d 141, 151 (D.C. Cir. 2006). Baker Hostetler argued,

however, that the Tariff Act’s public record requirement

mandates disclosure of certain information from the

Department’s “ex parte meetings” with outsiders and that the

meetings described in the 51 sets of notes were covered by that

statutory requirement. See 19 U.S.C. § 1677f(a)(3). The

Department responded that the meetings reflected in 50 of the 51

sets of notes were not covered by the statutory definition. In

relevant part, the District Court agreed with the Department’s

position that the meetings in question were not “ex parte

meetings” as defined by the statute; the court concluded that the

notes therefore need not be disclosed.

The Department advanced a different rationale for

withholding one set of notes taken by a senior Department

official, Bernard Carreau, during a telephone call with a U.S.

trade association. The Department argued that the Tariff Act’s

public record requirement did not apply to those notes because

the telephone call concerned the overall trade settlement

between the United States and Canada rather than the

antidumping/countervailing duty investigation. Based on its in

camera inspection of the notes, the District Court agreed and

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therefore concluded that the notes of the Carreau telephone call

were properly withheld.

The District Court also decided two other issues relevant to

this appeal. First, Baker Hostetler challenged the adequacy of

the Department’s search for responsive documents. The District

Court concluded that the Department acted in good faith and

conducted a reasonable search in response to Baker Hostetler’s

FOIA requests. Second, Baker Hostetler claimed that it was

entitled to recover attorney’s fees for its success in obtaining

other documents in this litigation. See 5 U.S.C. § 552(a)(4)(E).

Without reaching the statutory question whether Baker Hostetler

had “substantially prevailed” in the litigation, the District Court

concluded that the law firm was not eligible for fees because it

had represented itself.

On appeal, Baker Hostetler challenges the District Court’s

conclusions as to: the adequacy of the search; the withholding

of the 17 third-party letters and 51 sets of meeting notes; and

attorney’s fees.

II

At the outset, we consider the District Court’s jurisdiction.

Baker Hostetler filed suit under the Freedom of Information Act

and asked the court to order disclosure of certain Department of

Commerce records. The Act provides that the United States

District Court for the District of Columbia has jurisdiction over

FOIA suits. 5 U.S.C. § 552(a)(4)(B). Therefore, the District

Court had jurisdiction to decide this case, and we have

jurisdiction over the appeal under 28 U.S.C. § 1291.

We recognize that the Tariff Act grants the Court of

International Trade “exclusive jurisdiction of any civil action

commenced against the United States, its agencies, or its

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officers, that arises out of any law of the United States providing

for . . . administration and enforcement with respect to,” among

other things, “tariffs, duties, fees, or other taxes on the

importation of merchandise for reasons other than the raising of

revenue.” 28 U.S.C. § 1581(i)(2), (4). The Tariff Act’s

exclusive-jurisdiction provision does not apply here, however,

because this is a FOIA suit for disclosure of agency records.

Baker Hostetler’s complaint does not challenge the

Department’s “administration and enforcement” of duties. And

the mere fact that some of the requested records relate to the

Department of Commerce’s decision to impose duties does not

transform this FOIA suit for disclosure of records into a Tariff

Act suit seeking relief from duties.

III

Baker Hostetler first contends that the Department of

Commerce did not conduct an adequate search for responsive

records. A FOIA search is sufficient if the agency makes “a

good faith effort to conduct a search for the requested records,

using methods which can be reasonably expected to produce the

information requested.” Nation Magazine v. U.S. Customs

Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quotation marks

omitted). An agency may establish the adequacy of its search by

submitting reasonably detailed, nonconclusory affidavits

describing its efforts. See Steinberg v. Dep’t of Justice, 23 F.3d

548, 551 (D.C. Cir. 1994); Goland v. CIA, 607 F.2d 339, 352

(D.C. Cir. 1978).

In this case, the District Court concluded that the

Department conducted a sufficient search in response to Baker

Hostetler’s FOIA requests. Baker Hostetler asserts that the

Department’s failure to identify any responsive documents from

certain high-level officials demonstrates that the Department did

not perform a thorough search. But the District Court found that

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the Department “filed affidavits that describe in detail the

manner and method of the searches conducted.” Joint

Appendix (“J.A.”) 224. We agree with the District Court that

the Department’s procedure was reasonably calculated to

generate responsive documents. Baker Hostetler’s assertion that

an adequate search would have yielded more documents is mere

speculation. See Steinberg, 23 F.3d at 552.

Baker Hostetler also argues that the District Court

erroneously excused the Department’s failure to retrieve certain

deleted emails. But the Department adequately explained its

inability to recover those emails, and Baker Hostetler’s expert

did not rebut that explanation. See Goland, 607 F.2d at 352-55;

see also Schrecker v. Dep’t of Justice, 217 F. Supp. 2d 29, 35

(D.D.C. 2002) (“Discovery in FOIA is rare and should be denied

where an agency’s declarations are reasonably detailed,

submitted in good faith and the court is satisfied that no factual

dispute remains.”).

Finally, Baker Hostetler contends that the Department’s

alleged bad faith in responding to its FOIA requests warranted

discovery concerning the deleted emails. See Carney v. Dep’t

of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citing Goland, 607

F.2d at 355). The District Court correctly determined, however,

that Baker Hostetler offered no evidence of bad faith to justify

additional discovery. See Assassination Archives & Research

Ctr. v. CIA, 177 F. Supp. 2d 1, 8 (D.D.C. 2001) (“[A] mere

assertion of bad faith is not sufficient to overcome a motion for

summary judgment.”) (citing Hayden v. NSA, 608 F.2d 1381,

1387 (D.C. Cir. 1979)); see also SafeCard Servs., Inc. v. SEC,

926 F.2d 1197, 1200 (D.C. Cir. 1991) (district court has “broad

discretion to manage the scope of discovery” in FOIA cases).

In sum, the District Court did not err in concluding that the

Department conducted an adequate search in response to Baker

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Hostetler’s FOIA requests.

IV

1. Under Exemption 4, FOIA’s disclosure requirement

“does not apply to . . . commercial or financial information

obtained from a person and privileged or confidential.” 5 U.S.C.

§ 552(b)(4) (emphases added). The District Court held that the

Department need not disclose 17 third-party letters submitted to

the Department by the law firm Dewey Ballantine (on behalf of

American lumber companies) because they contain confidential

commercial information. Baker Hostetler contends that the

information in the letters is neither “commercial” nor

“confidential” under Exemption 4.

We must accept the District Court’s factual descriptions of

the contents of the letters unless the descriptions are clearly

erroneous. See Horowitz v. Peace Corps, 428 F.3d 271, 275,

277 (D.C. Cir. 2005). Furthermore, because “the agency alone

possesses knowledge of the precise content of documents

withheld, the FOIA requester and the court both must rely upon

its representations for an understanding of the material sought to

be protected.” King v. Dep’t of Justice, 830 F.2d 210, 218 (D.C.

Cir. 1987) (footnote omitted). We therefore rely on the

Department’s descriptions in its Vaughn index and

accompanying affidavit. We review de novo the District Court’s

conclusion that the letters as described fall within the FOIA

exemption. See, e.g., Spirko v. U.S. Postal Serv., 147 F.3d 992,

998 (D.C. Cir. 1998).

We first consider whether the 17 Dewey Ballantine letters

contain commercial information within the meaning of

Exemption 4. Contrary to Baker Hostetler’s suggestion,

Exemption 4 is not confined only to records that “reveal basic

commercial operations . . . or relate to the income-producing

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aspects of a business.” Pub. Citizen Health Research Group v.

FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983). The exemption

reaches more broadly and applies (among other situations) when

the provider of the information has a commercial interest in the

information submitted to the agency. See Nat’l Ass’n of Home

Builders v. Norton, 309 F.3d 26, 38-39 (D.C. Cir. 2002). In

Critical Mass Energy Project v. Nuclear Regulatory

Commission, for example, we held that a non-profit

organization’s reports describing the operations of its members’

nuclear power plants contained “commercial” information. 830

F.2d 278, 281 (D.C. Cir. 1987). We stated that the “commercial

fortunes” of member utilities “could be materially affected by

the disclosure of health and safety problems experienced during

the operation of nuclear power facilities.” Id. We reached a

similar result in Public Citizen Health Research Group v. FDA.

We determined that lens manufacturers had a “commercial

interest” in health and safety data submitted to the FDA because

the data would be “instrumental in gaining marketing approval

for their products.” 704 F.2d at 1290.

In this case, according to the Department’s general

summary of withheld documents (the Vaughn index), the 17

third-party letters contain “information that the submitter has

voluntarily made available in confidence to the U.S.

Government in connection with negotiations of a long-term

agreement to resolve the trade dispute over softwood lumber and

which is commercial and financial in nature.” J.A. 277. The

letters include “information about the domestic industry’s

commercial concerns,” and they “reflect the commercial

strengths and challenges faced by U.S. lumber companies in

general, even outside the context of the negotiations.” Id. Each

letter contains at least one of the following: the association’s

assessment of the commercial strengths and weaknesses of the

U.S. lumber industry; recommendations for settling or

facilitating negotiations pertaining to the U.S. trade dispute with

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Canada; an analysis of the effect such measures would have on

the commercial activities and competitive position of domestic

lumber companies; the U.S. lumber industry’s requirements for

achieving a competitive softwood lumber market; the U.S.

lumber industry’s views regarding the status of negotiations

between the United States and Canada; or a description of the

competitive challenges that domestic lumber companies face.

Under this Court’s precedents construing Exemption 4, U.S.

lumber companies have a “commercial interest” in such letters:

The letters describe favorable market conditions for domestic

companies, and their disclosure would help rivals to identify and

exploit those companies’ competitive weaknesses. See Critical

Mass Energy Project, 830 F.2d at 281; Pub. Citizen Health

Research Group, 704 F.2d at 1290. Therefore, the 17 third-

party letters plainly contain commercial information within the

meaning of Exemption 4.

We next consider whether the 17 letters are confidential

under Exemption 4. When information is submitted to the

Department voluntarily, “it will be treated as confidential under

Exemption 4 if it is of a kind that the provider would not

customarily make available to the public.” Critical Mass

Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871,

872 (D.C. Cir. 1992) (en banc).

It is undisputed that Dewey Ballantine voluntarily submitted

the letters and ordinarily would not have made the letters

available to the public. Baker Hostetler claims, however, that

the letters are not confidential because the Tariff Act requires

that they be included within the official record of the

Department’s investigation for purposes of litigation challenging

the duties. See 19 U.S.C. § 1516a(b)(2)(A)(i) (providing that the

record for judicial review shall consist of “a copy of all

information presented to or obtained by the Secretary, the

13

administering authority, or the Commission during the course of

the administrative proceeding, including all governmental

memoranda pertaining to the case and the record of ex parte

meetings required to be kept by [19 U.S.C. § 1677f(a)(3)]”).

Baker Hostetler further assumes that the official record must be

fully public.

Baker Hostetler’s argument as to the confidentiality of the

17 letters fails for two independent reasons: First, the premise

of Baker Hostetler’s argument is wrong because the 17 third-

party letters were not required to be included in the official

record of this antidumping/countervailing duty investigation.

After reviewing the letters, the District Court determined that

they were submitted not in connection with the

antidumping/countervailing duty investigation, but rather “to

advance the [U.S. lumber industry’s] positions on the terms of

an overall settlement of an ongoing dispute between the U.S.

and Canada on the importation of softwood lumber.” J.A. 353.

Baker Hostetler claims that any distinction between trade

negotiations and an antidumping/countervailing duty

investigation is illusory. But Baker Hostetler’s argument

ignores the text and structure of the Tariff Act, which

distinguishes trade negotiations from antidumping/

countervailing duty investigations. Compare 19 U.S.C. § 1516a

(governing “[j]udicial review in countervailing duty and

antidumping duty proceedings”) with id. § 2155(g) (addressing

when information “submitted in confidence by the private sector

or non-Federal government to officers or employees of the

United States in connection with trade negotiations,” including

confidential “commercial or financial information,” can be

disclosed to certain Department officials). The statutory

distinction between trade negotiations and antidumping/

countervailing duty proceedings is consistent, moreover, with

how trade negotiations and antidumping/countervailing duty

14

investigations generally occur. When the United States

negotiates a trade agreement, it commonly works in concert with

American industries and seeks input about how a possible

agreement would affect them. The line between trade

negotiations and an antidumping/countervailing duty

investigation reflects the reality that American industries are

likely to provide input (such as the 17 letters here) in connection

with trade negotiations while an antidumping/countervailing

duty investigation is also occurring. See Seventh Declaration of

Maria Dybczak ¶¶ 15-18 (J.A. 292-93).

Second, Baker Hostetler’s argument as to a lack of

confidentiality fails for a separate reason as well. The firm

relies on the Tariff Act’s official record requirement (which

applies in judicial proceedings challenging the imposition of

duties), but that provision has an exception that protects

“confidential” material from routine disclosure. See 19 U.S.C.

§ 1516a(b)(2)(B); see also 19 C.F.R. § 351.104; A. Hirsh, Inc.

v. United States, 657 F. Supp. 1297, 1302 (Ct. Int’l Trade 1987)

(analogizing § 1516a(b) to other statutes that protect confidential

commercial information, including FOIA Exemption 4, and

explaining that “[r]elease of such materials to an adversary,

whether or not under protective order, can seriously discourage

parties from disclosing confidential information in the future”).

Baker Hostetler’s submission here boils down to a suggestion

that a statute (the Tariff Act) that protects “confidential”

material somehow overrides FOIA’s protection of “confidential”

material. That is not a winning argument – and on that

independent ground as well, we reject Baker Hostetler’s

argument that the Tariff Act’s official record requirement

trumps the confidentiality of the 17 letters.

2. We turn next to the dispute over the 50 sets of meeting

notes that the District Court found to be protected under FOIA

Exemption 5 (there is a 51st set of notes we will consider

15

separately in the next section). Exemption 5 protects from

disclosure “inter-agency or intra-agency memorandums or

letters which would not be available by law to a party . . . in

litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption

5 incorporates the traditional privileges that the Government

could assert in civil litigation against a private litigant. Those

include, for example, the government attorney-client privilege,

the government attorney work product protection, the

presidential communications privilege, the state secrets

privilege, and the deliberative process privilege. See Judicial

Watch, Inc. v. Dep’t. of Justice, 365 F.3d 1108, 1109, 1113-14

(D.C. Cir. 2004); Burka v. Dep’t of Health & Human Servs., 87

F.3d 508, 516 (D.C. Cir. 1996).

This case involves the deliberative process privilege, which

“protects agency documents that are both predecisional and

deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151

(D.C. Cir. 2006). As a general matter, notes taken by

government officials often fall within the deliberative process

privilege. See Coastal States Gas Corp. v. Dep’t of Energy, 617

F.2d 854, 866 (D.C. Cir. 1980) (the deliberative process

privilege covers “subjective documents which reflect the

personal opinions of the writer rather than the policy of the

agency”). Notes generally are selective and deliberative – and

routine public disclosure of meeting notes and other notes would

hinder government officials from debating issues internally,

deter them from giving candid advice, and lower the overall

quality of the government decisionmaking process. See, e.g.,

Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 13 (D.D.C.

1995) (“Disclosure of this type of deliberative material inhibits

open debate and discussion, and has a chilling effect on the free

exchange of ideas.”); cf. Bureau of Nat’l Affairs, Inc. v. Dep’t of

Justice, 742 F.2d 1484, 1494 (D.C. Cir. 1984) (recognizing

possibility that notes might be withheld under Exemption 5

because of “the potential chilling effect that disclosure of

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handwritten notes might have on the activities of government

employees”).

On appeal, Baker Hostetler does not dispute that the 50 sets

of notes are pre-decisional and deliberative, and ordinarily

would be protected under the deliberative process privilege.

Baker Hostetler instead argues that the Tariff Act requires public

documentation of those ex parte meetings in the public record.

The Department has not taken issue with this premise – namely,

that the Department must disclose certain information contained

in meeting notes to the extent the Tariff Act’s public record

requirement applies to these meetings. (There has been no

suggestion, moreover, that the general public record

requirement of Tariff Act § 1677f(a)(3) somehow could be

affected or limited by § 1516a(b)(2)(B)’s protection for

otherwise privileged materials in judicial proceedings

challenging the imposition of duties. The Department has flatly

stated that the record required by § 1677f(a)(3) is a “public

record.” Department’s Br. at 10 (emphasis added).) Throughout

this FOIA litigation, the Department has turned over information

covered by the public record provision of the Tariff Act,

regardless whether such information otherwise might have been

protected under the deliberative process privilege. See, e.g., J.A.

246 (District Court’s unchallenged order directing the

Department to disclose matters discussed and persons in

attendance at meetings); Department’s Br. at 14 (Department

“went beyond the [District Court’s] order . . . and voluntarily

disclosed information from all meetings concerning the

administrative proceedings in the AD/CVD investigation, which

included certain contacts that [the Department] did not consider

subject to the Tariff Act’s ex parte memorialization

requirement”); Department’s Br. at 17 (Department “has

provided such information as the dates, names of participants,

and the topics discussed during contacts on the AD/CVD

proceedings”); Eighth Declaration of Maria Dybczak ¶ 7 (J.A.

17

297-98) (Department “provided the information ordered [by the

District Court] with respect to all meetings that could be

described as pertaining to a[n] ex parte meeting as the agency

interprets that requirement”); Def.’s Reply to Pl.’s Resp. to

Def.’s Report to the Court on the Number of Ex Parte Contacts

that are Being Withheld Because They are Not Subject to the

Tariff Act (January 25, 2005) at 2 (Department has provided

information on “all [ex parte] meetings and contacts identified

in the notes of agency employees”).

The ultimate dispute between the parties with respect to the

50 sets of meeting notes is therefore quite narrow: Are the

meetings in question covered by the Tariff Act’s public record

requirement for ex parte meetings? The Department argues (and

the District Court agreed) that the meetings are not covered

because the Tariff Act’s public record requirement applies only

to meetings between (i) outside “interested parties” and (ii)

Department “decision makers.” The problem for the

Department is that its interpretation is inconsistent with the plain

language of the statute, which provides:

The administering authority and the Commission shall

maintain a record of any ex parte meeting between–

(A) interested parties or other persons providing

factual information in connection with a proceeding,

and

(B) the person charged with making the

determination, or any person charged with making a

final recommendation to that person, in connection

with that proceeding,

if information relating to that proceeding was

presented or discussed at such meeting. The record

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of such an ex parte meeting shall include the identity

of the persons present at the meeting, the date, time,

and place of the meeting, and a summary of the

matters discussed or submitted.

19 U.S.C. § 1677f(a)(3). As this statutory language makes clear

(and contrary to the Department’s argument), the public record

requirement for ex parte meetings is not limited to meetings

between outside interested parties and Department “decision

makers.” Rather, the requirement applies to meetings between:

(i) interested parties or other persons providing factual

information in connection with a proceeding, and (ii) the person

charged with making the determination, or any person charged

with making a final recommendation to that person.

In assessing the 50 sets of meeting notes, the District Court

did not apply the definition in the statutory text; it instead

accepted the narrower definition advanced by the Department.

We therefore must reverse and remand for further proceedings

with respect to the 50 sets of meeting notes. On remand, the

District Court first should determine which of the meetings

reflected in the 50 sets of notes are covered ex parte meetings

under the statutory definition. In that regard, we point out that

although the Department’s interpretation of the statute is too

narrow, Baker Hostetler’s interpretation of the statute is too

broad. Baker Hostetler argues that the Act “requires Commerce

to disclose ex parte meetings with staff,” Baker Hostetler’s Br.

at 38 (emphasis added), regardless whether the staff member

meets the statutory definition of “the person charged with

making the determination, or any person charged with making

a final recommendation to that person,” 19 U.S.C. §

1677f(a)(3)(B). Baker Hostetler’s interpretation is overinclusive.

On remand, the District Court should adhere to the plain terms

of the statutory language in determining which meetings are

covered.

19

For any meeting that the District Court finds to be covered

by the public record requirement, the court then should

determine which parts of the notes from those meetings must be

disclosed. As it has done throughout this litigation with respect

to other notes, the District Court should order the Department to

disclose only those portions of the notes from covered meetings

that reflect the identity of persons present or the date, time, or

place of the meeting. Cf. 5 U.S.C. § 552(b) (agency must

disclose “reasonably segregable” portions of a requested record

“after deletion of the portions which are exempt”); Kissinger v.

Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152

(1980) (“[FOIA] does not obligate agencies to create or retain

documents; it only obligates them to provide access to those

which it in fact has created and retained.”).

The Tariff Act’s public record requirement also directs the

Department to prepare a “summary of the matters discussed”

during a covered meeting. 19 U.S.C. § 1677f(a)(3). Of course,

the Department is not required to create such records in this

FOIA suit. See Kissinger, 445 U.S. at 152. And it is not at all

clear whether any portion of meeting notes would qualify as a

“summary of the matters discussed” as contemplated by the

Tariff Act. Throughout this litigation, so as to avoid any delay

as a result of this question, the Department has agreed to

disclose “the topics discussed” at covered meetings. See

Department’s Br. at 17 (noting that the Department “has

provided such information as . . . the topics discussed during

contacts on the AD/CVD proceedings”); J.A. 306-328, 312

(Department’s Second Amended Vaughn Index, summarizing

“contacts with outside persons, whether under the Tariff Act or

not, and the topics discussed”). The parties have not suggested

that the District Court follow a different practice on remand with

respect to any additional covered meetings, and the District

Court may continue to take that same approach.

20

3. One set of meeting notes raises a different issue. Those

are the notes taken by Department of Commerce official

Bernard Carreau during his telephone conversation with a trade

association representing U.S. lumber companies. The public

record requirement covers meetings in which a person provides

a Department official “factual information in connection with a

proceeding.” 19 U.S.C. § 1677f(a)(3)(A) (emphasis added).

Based on its in camera review, the District Court found that

these notes did not concern the antidumping/countervailing duty

proceeding. Because we have no reason to question that factual

description, we conclude that the notes of the telephone call

were not covered by the public record requirement. We

therefore affirm the District Court’s decision that the notes of

the Carreau meeting were properly withheld under FOIA

Exemption 5.

V

Like many other federal statutes, the Freedom of

Information Act provides that “[t]he court may assess against

the United States reasonable attorney fees and other litigation

costs reasonably incurred in any case under this section in which

the complainant has substantially prevailed.” 5 U.S.C. §

552(a)(4)(E). After Baker Hostetler filed suit in this case, the

Department produced (in full or redacted form) numerous

responsive documents in accordance with the District Court’s

orders. As a result, Baker Hostetler contends it is a

“complainant” that has “substantially prevailed” in the FOIA

litigation (and therefore may receive attorney’s fees). The

District Court ruled, however, that Baker Hostetler is not

eligible for attorney’s fees because the firm represented itself in

the litigation.

We conclude that Baker Hostetler is eligible for attorney’s

fees because of (i) the plain text of the statute and (ii) the

21

Supreme Court’s decision in Kay v. Ehrler, 499 U.S. 432 (1991),

particularly footnote 7 of that opinion. We note, moreover, that

the two other Court of Appeals panels to consider the issue after

Kay each unanimously concluded that a law firm representing

itself is eligible for attorney’s fees.

By its terms, FOIA’s fees provision applies to all

“complainants” who have “substantially prevailed.” The

statutory text contains no exception for a law firm that

represents itself. In interpreting attorney’s fees provisions, as in

construing other statutes, courts must adhere to the plain text.

See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct.

2455, 2459 (2006); Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004);

W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991);

Zerilli v. Evening News Ass’n, 628 F.2d 217, 220 (D.C. Cir.

1980). Under the plain language of § 552(a)(4)(E), Baker

Hostetler is a “complainant” and may receive attorney’s fees if

it substantially prevailed.

The Department correctly points out, however, that the

Supreme Court and this Court have carved out a narrow

exception to attorney’s fee statutes when individual plaintiffs

represent themselves. See, e.g., Kay, 499 U.S. at 437-38; Burka

v. Dep’t of Health & Human Servs., 142 F.3d 1286 (D.C. Cir.

1998). In Kay, the Supreme Court held that an individual

attorney representing himself could not recover attorney’s fees

under 42 U.S.C. § 1988, the attorney’s fees provision for certain

civil rights suits. 499 U.S. at 437-38. The Court reasoned that

“the word ‘attorney’ assumes an agency relationship, and it

seems likely that Congress contemplated an attorney-client

relationship as the predicate for an award under § 1988.” Id. at

435-36 (footnote omitted). The attorney’s fees provision was

designed, moreover, to “enable potential plaintiffs to obtain the

assistance of competent counsel in vindicating their rights.” Id.

at 436. Congress wanted to “ensur[e] the effective prosecution

22

of meritorious claims,” which is more likely when litigation

decisions are informed by “the judgment of an independent third

party.” Id. at 437.

In Kay, the Supreme Court made crystal clear, however, that

the exception for individual plaintiffs who represent themselves

does not apply to organizations:

Petitioner argues that because Congress intended

organizations to receive an attorney’s fee even when

they represented themselves, an individual attorney

should also be permitted to receive an attorney’s fee

even when he represents himself. However, an

organization is not comparable to a pro se litigant

because the organization is always represented by

counsel, whether in-house or pro bono, and thus, there

is always an attorney-client relationship.

Id. at 436 n.7. In explaining that organizations may recover fees

when represented by in-house counsel, the Supreme Court did

not distinguish between law firms and other types of

organizations. Nor can we see any principled basis for making

such a distinction. Footnote 7 suggests that an in-house counsel

for a corporation is sufficiently independent to ensure effective

prosecution of claims, thus justifying fees. An attorney who

works for a law firm certainly is no less independent than an

attorney who works for a corporation. Therefore, it would make

little sense to slice and dice Kay’s conclusion regarding

“organizations” and apply footnote 7 to some organizations but

not others.

This Court relied on Kay in holding that individual plaintiffs

representing themselves could not obtain attorney’s fees under

FOIA. Burka, 142 F.3d at 1288-92. Because the Burka case

involved an individual plaintiff, we had no occasion to address

23

footnote 7 of Kay and the Supreme Court’s distinction between

individual and organizational litigants.

Since Kay, two Courts of Appeals – the Fourth Circuit and

the Fifth Circuit – have considered the application of attorney’s

fees statutes to law firms that represent themselves. Both courts

persuasively relied on footnote 7 of Kay in holding that law

firms are eligible for fees in such cases. In Bond v. Blum, two

law firms that represented themselves in a copyright case sought

attorney’s fees under 17 U.S.C. § 505. 317 F.3d 385, 398 (4th

Cir. 2003). Relying on footnote 7 of Kay, the Court of Appeals

concluded that the rule against individual attorney-litigants

recovering fees does not apply “in circumstances where entities

represent themselves through in-house or pro bono counsel.” Id.

at 399 (emphasis added). An attorney-client relationship exists,

the court reasoned, when “a member of an entity who is also an

attorney represents the entity.” Id. at 400. Although such a

member is “interested in the affairs of the entity, he would not

be so emotionally involved in the issues of the case so as to

distort the rationality and competence that comes from

independent representation.” Id. The law firm “still remains a

business and professional entity distinct from its members, and

the member representing the firm as an entity represents the

firm’s distinct interests in the agency relationship inherent in the

attorney-client relationship.” Id. The Fifth Circuit similarly

relied on footnote 7 of Kay and reached the same conclusion.

See Gold, Weems, Bruser, Sues & Rundell v. Metal Sales Mfg.

Corp., 236 F.3d 214, 218-19 (5th Cir. 2000) (holding that law

firm that represented itself could recovery attorney’s fees under

state statute in diversity case). As a result of our decision today,

the three Courts of Appeals that have considered the question

have all concluded that a law firm representing itself in litigation

may receive attorney’s fees.

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

24

and against statutes that award attorney’s fees to prevailing

parties (the English rule), as well as statutes with one-way fee-

shifting provisions such as the FOIA fees provision. Our task,

however, is to interpret the statute as passed by Congress and

construed by the Supreme Court. Baker Hostetler is a

“complainant” eligible for fees under the plain text of the FOIA

fees provision. The Supreme Court has made clear, moreover,

that the exception to fees statutes for individual litigants who

represent themselves does not extend to organizational litigants

such as Baker Hostetler. Two Courts of Appeals have applied

this Supreme Court precedent and held that a law firm that

represents itself remains eligible for attorney’s fees. We agree

with those Courts of Appeals. We reverse and remand on the

attorney’s fees issue so that the District Court can determine

whether Baker Hostetler “substantially prevailed” for purposes

of the FOIA attorney’s fees statute and is entitled to fees.

VI

We affirm the District Court’s judgment with respect to the

adequacy of the search, the 17 third-party letters exempt from

disclosure under 5 U.S.C. § 552(b)(4), and the Carreau notes.

We reverse and remand for further proceedings with respect to

the 50 sets of meeting notes withheld under 5 U.S.C. § 552(b)(5)

and the attorney’s fees determination.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting in part:

While I fully concur in Parts I–IV of the majority opinion,

I disagree with the majority’s conclusion that the United States

Supreme Court’s footnote observation in Kay v. Ehrler, 499 U.S.

432, 436 n.7 (1991), can—or should—be stretched to permit a

law firm litigant acting through its member lawyers to collect

attorney’s fees under FOIA’s fee-shifting provisions.

In Kay, the Supreme Court extended the general principle

that a pro se litigant is not entitled to attorney’s fees under a

similar fee-shifting provision to include a lawyer-litigant

appearing pro se. See 499 U.S. at 437–38. The Court determined

that the overriding purpose of the fee-shifting provision of 42

U.S.C. § 1988 is to ensure the retention of “independent

counsel” and a bona fide attorney-client relationship capable of

promoting “effective prosecution of meritorious claims.” Id. at

437. That purpose applies equally to a lawyer proceeding pro se

as to a layman. Id. As the Court noted, “[e]ven a skilled lawyer

who represents himself is at a disadvantage in contested

litigation” because “[h]e is deprived of the judgment of an

independent third party in framing the theory of the case,

evaluating alternative methods of presenting the evidence, cross-

examining hostile witnesses, formulating legal arguments, and

in making sure that reason, rather than emotion, dictates the

proper tactical response to unforseen developments.” Id. Further,

“[e]thical considerations may make it inappropriate for [a lawyer

proceeding pro se] to appear as a witness.” Id.

Although Kay decided only the attorney’s fee issue for a pro

se lawyer-litigant, in a footnote the Court rejected the plaintiff’s

attempt to analogize his situation to the “organizations

[Congress intended] to receive an attorney’s fee even when they

represented themselves” by noting that “an organization is not

comparable to a pro se litigant because the organization is

always represented by counsel, whether in-house or pro bono,

and thus, there is always an attorney-client relationship.” Id. at

2

436 n.7. The Court said nothing to indicate what type of

“organization” it meant except to describe its legal

representative as either in-house or unpaid. Id. This type of legal

representation does not immediately bring to mind a law firm

“organization,” at least not the Court’s specification of a pro

bono lawyer.1 And even the “in-house counsel” referenced in

footnote 7 means either corporate counsel or public sector

lawyers employed in state attorney’s offices more naturally than

it does members of a law firm. See, e.g., Wisconsin v. Hotline

Indus., Inc., 236 F.3d 363 (7th Cir. 2000) (State’s attorney

awarded attorney’s fees for representing State under removal

statute (28 U.S.C. § 1447(c))).

Nevertheless, using this “slim reed” dictum and disregarding

the reasoning underlying the Kay holding, the majority construes

the generic “organization” of Kay’s footnote 7 to include a law

firm. Maj. Op. at 21–22.2 Indeed, the majority goes further than

1

An organization represented by “pro bono counsel,” at least

in my experience, refers to a public interest or other non-profit

organization, not a law firm.

2

The majority relies on the post-Kay decisions of two other

courts of appeals. See Bond v. Blum, 317 F.3d 385, 398 (4th Cir.

2003); Gold, Weems, Bruser, Sues & Rundell v. Metal Sales Mfg.

Corp., 236 F.3d 214, 218–19 (5th Cir. 2000). Although both circuits

concluded that a law firm constitutes an organization within the

meaning of Kay’s footnote 7, each proceeded more tentatively than the

majority suggests. See Maj. Op. at 22–23. In Blum the Fourth Circuit

recognized that “representation of a law firm by one of its members

presents an increased risk of emotional involvement and loss of

independence” but awarded attorney’s fees because the record gave

“no indication” of compromised independence. 317 F.3d at 400. The

Fifth Circuit’s invocation of Kay in Metal Sales Mfg. was even more

conditional. The case involved a Louisiana statute under which the

3

the Supreme Court’s description of an “organization” by

concluding that “[a]n attorney-client relationship exists . . . when

‘a member of an entity who is also an attorney represents the

entity.’ ” Maj. Op. at 22 (quoting Bond v. Blum, 317 F.3d 385,

400 (4th Cir. 2003)) (emphasis added). Because “[t]he law firm

‘still remains a business and professional entity distinct from its

members, . . . the member representing the firm as an entity

represents the firm’s distinct interests in the agency relationship

inherent in the attorney-client relationship.’ ” Id. at 23 (quoting

Blum, 317 F.3d at 400) (emphasis added).

The majority’s reasoning thus reduces to the following: (1)

a law firm constitutes an entity with a legal identity distinct from

its members; (2) an entity with a separate identity comes within

the minimal description of “organizations . . . represent[ing]

themselves” in Kay’s footnote dictum, see Kay, 499 U.S. at 436

n.7; and, therefore, (3) a law firm constitutes an organization

eligible for attorney’s fees even when it is represented by its

members. Yet Kay’s observation regarding “organizations” is

not based simply on the distinction between an entity and an

individual. Instead, Kay’s emphasis on independent judgment

and ethical considerations in holding lawyer-litigants barred

from attorney’s fees is wholly ignored by the majority.3

Louisiana state courts had in the past permitted attorney’s fees awards

to lawyers proceeding pro se. See 236 F.3d at 218; Hoskins v. Ziegler,

506 So.2d 146 (La. Ct. App. 1987). The Fifth Circuit noted Kay’s

applicability only “if the Louisiana Open Account Statute were

construed to require both a lawyer and a client.” Id. at 219.

3

Moreover, the majority fails to consider the implications of

basing its reasoning on the separate identities of law firms as entities

and its member lawyers as individuals. Under the majority’s reading

of Kay need an individual lawyer simply incorporate himself in order

4

Not only does the majority stretch Kay’s dictum past its

breaking point but, in my view, it strays from our own

precedent. In Burka v. U.S. Dep’t of Health & Human Servs.,

142 F.3d 1286 (D.C. Cir. 1998), we interpreted Kay, stressing

the necessity of independent legal judgment, to deny attorney’s

fees not only to the lawyer-litigant but also to his law firm

colleagues for their legal services rendered in a FOIA action.

See 142 F.3d at 1291–92. Acknowledging an earlier case

awarding fees to a lawyer-litigant for the work of co-counsel,

see Lawrence v. Bowsher, 931 F.2d 1579 (D.C. Cir. 1991), we

distinguished it based on the fact that co-counsel there were not

“affiliated with the litigant’s law practice.” Burka, 142 F.3d at

1291. With no affiliation, as in Lawrence, we found the

“independent counsel” that Kay emphasized. Id.; see also

Lawrence, 931 F.2d at 1579. Relying on Kay, we then noted that

the agency relationship which “ ‘the word attorney assumes’ . .

. does not exist . . . where the counsel are simply colleagues at

the litigant’s law firm working under the litigant’s

direction.”Burka, 142 F.3d at 1291 (quoting Kay, 499 U.S. at

435). Thus, because the lawyer-litigant controlled legal strategy

and the presentation of evidence and co-counsel were not

“independent counsel hired by him to assist him,” no genuine

attorney-client relationship existed and attorney’s fees were

unavailable. Id. (emphasis added).

to be eligible for attorney’s fees? And what of the sole practitioner

with a “firm” identity formally separate from himself as an individual?

In addition, the majority fails to address an inconsistency in its

reliance on Kay: At the same time it splits the law firm entity from its

members, it does so relying on the Supreme Court’s description of

organizations “represent[ing] themselves.” Kay, 499 U.S. at 436 n.7

(emphasis added).

5

In practice, there is no difference between Burka’s co-

counsel working for, and under the direction of, their law firm

colleague and Baker & Hostetler’s members’ representation of

all of their affiliated partners, that is, the law firm itself. Burka’s

denial of fees for the work of co-counsel working “in the same

firm” as the individual lawyer-litigant applies equally to lawyers

who constitute “the same firm.” See id. at 1292. Just as Burka

directed his affiliated co-counsel, Baker & Hostetler controlled

and directed its quest for attorney’s fees through its member

lawyers, presumably acting as “the final filter,” Kooritzky v.

Herman, 178 F.3d 1315, 1324 (D.C. Cir. 1999), for litigation

decisions.

Absent the “detached perspective” that comes from

independent counsel, a law firm as an entity—as much as a

lawyer-litigant—may have an interest in bringing suit if a fee-

shifting statute is in effect “solely as a way to generate fees

rather than to vindicate personal claims.” Falcone v. IRS, 714

F.2d 646, 648 (6th Cir. 1983) (“We do not believe that Congress

intended to so subsidize attorneys without clients.”).4 Moreover,

in light of Kay’s focus upon independent legal judgment, a “rule

that authorizes awards of counsel fees to pro se litigants . . . who

are members of the bar—would create a disincentive to employ

counsel whenever such a plaintiff considered himself competent

to litigate on his own behalf.” Kay, 499 U.S. at 438; cf. Blum,

317 F.3d at 400. Finally, it is possible, if not likely, that the firm

members representing Baker & Hostetler in the FOIA action

may be witnesses in seeking attorney’s fees, thereby implicating

the ethical concerns voiced in Kay. See 499 U.S. at 437.

4

While the Court in Kay did not use Falcone’s interest

analysis, the Court described Falcone as requiring the same “detached

and objective perspective” that it found lacking in Kay. Compare Kay,

499 U.S. at 434 n.4 (quoting Falcone, 714 F.2d at 647) with id. at 437.

6

The Supreme Court recently reaffirmed, in a different

context, the decision of a sister circuit “to err on the side of

caution” when facing “imprecision in [the Court’s] prior cases”

by “neither forc[ing] . . . nor bur[ying] the issue” but instead by

“follow[ing] [the Court’s precise holding] until expressly

overruled by the Supreme Court,” even if the holding has since

been undermined by intervening precedent. Eberhart v. United

States, 126 S.Ct. 403, 404, 407 (2005) (noting tension between

Court’s earlier holding that filing deadlines are “jurisdictional”

and intervening precedent finding other time prescriptions non-

jurisdictional). Such caution is even more apt here. See Rush

Prudential HMO, Inc. v. Moran, 536 U.S. 355, 377 (2002)

(declining “to turn dictum into holding”); U.S. Bancorp

Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 24 (1994)

(“invoking our customary refusal to be bound by dicta”). Rather

than relying on Kay’s footnote dictum to “force” a holding that

a law firm litigant is eligible for attorney’s fees under FOIA

based on its members’ work, I would follow Circuit

precedent—as well as the holding in Kay—and find Baker &

Hostetler ineligible for attorney’s fees under FOIA.

Accordingly, I respectfully dissent from Part V of the majority

opinion.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Issued December 22, 2006

No. 05-5185

BAKER & HOSTETLER LLP,

APPELLANT

v.

UNITED STATES DEPARTMENT OF COMMERCE,

APPELLEE

Consolidated with

05-5350

On Motion for Recusal

KAVANAUGH, Circuit Judge: Appellant Baker Hostetler

submitted a motion requesting my recusal under the federal

recusal statute if, in my prior work for President George W.

Bush, I “personally participated on issues relating to the

Softwood Lumber dispute between the United States and

Canada.” Mot. at 2; see 28 U.S.C. § 455. I denied the motion

because recusal is not supported by or appropriate under either

the specific provisions of § 455(b) or the general provision of

§ 455(a).

In this Freedom of Information Act litigation, Baker

Hostetler seeks certain documents relating to the Department of

2

Commerce’s investigation of Canadian softwood lumber

imports. The Department imposed duties on Canadian softwood

lumber in early 2002. Later that year, Baker Hostetler filed two

FOIA requests for Department documents. With respect to the

documents that are at issue in this appeal, the Department

claimed FOIA exemptions 4 and 5. See 5 U.S.C. § 552(b)(4)-

(5). The District Court granted summary judgment to the

Department. On appeal, Baker Hostetler has challenged the

District Court’s decision not to order disclosure of those

documents and has moved for my recusal.

Section 455(b)(3) of Title 28 is the provision of federal law

that specifically addresses the recusal of federal judges who

formerly served in government. The statute requires recusal

when a judge “has served in governmental employment and in

such capacity participated as counsel, adviser or material

witness concerning the proceeding or expressed an opinion

concerning the merits of the particular case in controversy.” 28

U.S.C. § 455(b)(3). A “proceeding” is defined to include

“pretrial, trial, appellate review, or other stages of litigation.”

28 U.S.C. § 455(d)(1).

During my service in the Executive Branch, I did not

participate in any stage of this Baker Hostetler litigation, nor did

I express an opinion concerning the merits. Therefore,

§ 455(b)(3) does not support my recusal in this case.

Baker Hostetler also cites the requirement under

§ 455(b)(1) that a judge recuse if he has “personal knowledge of

disputed evidentiary facts concerning the proceeding.” Mot. at

4. The questions in the Baker Hostetler case focus on whether

particular Department of Commerce documents fall within

certain FOIA exemptions. While serving in the Executive

Branch, I did not obtain personal knowledge of any disputed

evidentiary facts in this FOIA case.

3

Section 455(a)’s general “catch-all” provision requires

recusal when a judge’s “impartiality might reasonably be

questioned.” That section covers situations not addressed by

§ 455(b) that nonetheless might be appropriate for recusal. In

§ 455(b)(3), however, Congress clearly and specifically

addressed the effect of prior government service on a judge’s

recusal obligations. Before enacting that law in 1974, Congress

carefully studied the issue, including obtaining guidance from

the then-recently amended ABA Code of Judicial Conduct. See

H.R. Rep. No. 93-1453 (1974), as reprinted in 1974

U.S.C.C.A.N. 6351. In the statute, Congress chose to draw the

recusal line for prior government employment at participation in

the proceeding or expression of an opinion concerning the

merits of the particular case in controversy. It bears emphasis,

moreover, that Congress chose the “personal-participation” rule

for recusal based on prior government employment while

simultaneously enacting a different and far broader

“associational” rule for recusal based on prior law firm

employment. See 28 U.S.C. § 455(b)(2).

As to prior government work, Congress was aware of the

deeply rooted tradition of high-level Executive Branch and

Legislative Branch officials assuming the bench. Based on that

history and to avoid making it all but impossible for judges with

such backgrounds to perform their judicial duties in many cases,

Congress established the specific “personal-participation” rule

in § 455(b)(3). In determining whether recusal is appropriate or

inappropriate based on prior government employment, judges

must respect the line drawn by Congress.

To be sure, Congress could not foresee every conceivable

recusal scenario that might occur. Therefore, rare and

extraordinary circumstances arising out of prior government

employment – but not covered or envisioned by § 455(b)(3) –

4

conceivably could occur and support recusal under § 455(a).

Even so, this case is not such an extraordinary situation.

Baker Hostetler also contends that I should recuse if I

provided policy advice to the President on the softwood lumber

issue. Mot. at 3. Even if the factual premise of this claim were

accurate, it would not provide a basis for recusal: Consistent

with the line drawn by Congress in § 455(b)(3), judges who

previously participated in policy matters and provided policy

advice in government do not ordinarily recuse in litigation

involving those policy issues. That principle was exemplified

recently by Justice Breyer’s participation in consideration of the

constitutionality of the Sentencing Guidelines after serving as a

member of the Sentencing Commission that helped draft the

Guidelines. See United States v. Booker, 543 U.S. 220 (2005);

see also Laird v. Tatum, 409 U.S. 824, 839 (1972) (Rehnquist,

J.) (declining to recuse); id. at 831 (“[N]one of the former

Justices of this Court since 1911 have followed a practice of

disqualifying themselves in cases involving points of law with

respect to which they had . . . formulated policy prior to

ascending to the bench.”); id. (describing how Justice Black sat

on cases assessing the constitutionality of the Fair Labor

Standards Act after being one of its principal authors while a

Senator); id. at 831-32 (describing how Justice Frankfurter sat

on a case interpreting the scope of the Norris-LaGuardia Act

after playing an important role in drafting it); id. at 832

(describing how Chief Justice Vinson sat on cases involving

legislation he helped draft while in the House of

Representatives); cf. Carter v. West Publ’g Co., No. 99-11959-

EE, 1999 WL 994997, at *9 (11th Cir. Nov. 1, 1999) (Tjoflat, J.)

(“Courts have uniformly rejected the notion that a judge’s

previous advocacy for a legal, constitutional, or policy position

is a bar to adjudicating a case, even when that position is

directly implicated in the case before the court.”); Schurz

Communications v. FCC, 982 F.2d 1057, 1061-62 (7th Cir.

5

1992) (Posner, J.); In re Executive Office of the President, 215

F.3d 25, 25-26 (D.C. Cir. 2000) (Tatel, J.).

Since assuming judicial office, I have recused as

appropriate in several cases. See, e.g., United States v. Rayburn

House Office Bldg., Room 2113, Wash., DC 20515, No. 06-3105

(D.C. Cir. July 28, 2006) (order); Cobell v. Kempthorne, 455

F.3d 317 (D.C. Cir. 2006). In this case, however, recusal is not

supported by or appropriate under either the specific provisions

of § 455(b) or the general provision of § 455(a). Therefore, I

denied the motion.