City of Chicago v. TREA

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-2167

CITY OF CHICAGO,

Plaintiff-Appellee,

v.

UNITED STATES DEPARTMENT OF THE TREASURY,

BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 3417—George W. Lindberg, Judge.

____________

ARGUED FEBRUARY 15, 2005—DECIDED SEPTEMBER 12, 2005

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Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. For the third time in four years,

we consider whether the Freedom of Information Act

(“FOIA”) entitles the City of Chicago (the “City”) to informa-

tion from the Bureau of Alcohol, Tobacco, and Firearms

(“ATF”) databases regarding the sale and tracing of fire-

arms. In our two previous stabs at the issue, we affirmed

the district court’s ruling that ATF must provide the City

access to the databases. Subsequent to the release of our

second opinion, Congress passed the Consolidated Appropri-

ations Act of 2005, which cuts funding for data requests like

the City’s and also provides that the data “shall be immune

2 No. 01-2167

from judicial process.” Pub. L. 108-447, 118 Stat. 2809,

2859-60. In light of the new law, we granted ATF’s motion

for a rehearing and requested briefs regarding the law’s

impact on this case. For the reasons stated herein, we

vacate our prior opinions, reverse the district court’s ruling,

and remand with instructions to enter judgment in favor of

ATF.

I. Background

We assume a familiarity with our prior opinions and

only briefly sketch the background of the case in order to

frame the issue before us. In March 2000, the City submit-

ted a formal FOIA request to ATF for certain local and

national Trace Database and Multiple Sales Database

information. ATF complied with the request in part, but

it refused to disclose a significant portion of the information

requested, claiming that it was protected under FOIA

exemptions for privacy and law enforcement purposes. The

City then filed this federal suit under FOIA in pursuit of

the withheld information. The district court granted the

City’s motion for summary judgment, ordered ATF to

disclose the information, and stayed the order pending

appeal.

On April 25, 2002, we affirmed the district court’s rul-

ing on the ground that none of the FOIA exemptions

justified withholding the data. City of Chicago v. United

States Dep’t of Treasury, 287 F.3d 628, amended on denial

of rehearing, 297 F.3d 672 (7th Cir. 2002) (“City of Chicago

I”). ATF filed a petition for a writ of certiorari and the

Supreme Court granted the petition. Dep’t of Treasury v.

City of Chicago, 537 U.S. 1018, 123 S.Ct. 536, 154 L.Ed.2d

424 (2002). Congress then passed the Consolidated Appro-

priations Resolution of 2003, which contained a rider

prohibiting the use of appropriated funds “to take any

action based upon any provision of [the FOIA] with respect

No. 01-2167 3

to” the databases in question here. Pub. L. No. 108-7, § 644,

117 Stat. 11 (2003). The Supreme Court vacated

the judgment of this court and remanded the case to

determine “what effect, if any,” the rider had on the case.

Dep’t of Justice v. City of Chicago, 537 U.S. 1229, 123 S.Ct.

1352, 154 L.Ed.2d 1097 (2003). After the remand but before

oral argument, Congress passed another appropriations

rider that prohibited the use of appropriated funds “to

disclose to the public” the firearms trace or multiple sales

data. Pub. L. No. 108-199, 118 Stat. 3 (2004). On remand,

we again found in favor of the City, concluding that the

riders precluded the use of funding to retrieve the data but

did not alter the City’s right to access the information. City

of Chicago v. United States Dep’t of Treasury, 384 F.3d 429

(7th Cir. 2004) (“City of Chicago II”). To alleviate the

funding problem, we took the City up on its suggestion to

appoint a special master to retrieve the data from ATF at

the City’s cost.

ATF filed a petition for rehearing with a suggestion for a

rehearing en banc. While that petition was pending,

Congress passed the Consolidated Appropriations Act

of 2005, which contained yet another rider provision per-

taining to the ATF sales and tracing databases. To consider

the effect of this new law, we granted ATF’s petition to the

extent it requested a panel rehearing.

II. Discussion

The parties predictably take diametrically opposed

positions regarding the impact of the relevant language in

the 2005 Appropriations Act. In the City’s view, it changes

nothing. In ATF’s view, it changes everything. We turn

to the language of the Act for guidance:

No funds appropriated under this or any other Act with

respect to any fiscal year may be used to disclose part

or all of the contents of the Firearms Trace System

4 No. 01-2167

database maintained by the National Trace Center of

the Bureau of Alcohol, Tobacco, Firearms, and Explo-

sives or any information required to be kept by licens-

ees pursuant to section 923(g) of title 18, United States

Code, or required to be reported pursuant to para-

graphs (3) and (7) of such section 923(g), to anyone

other than a Federal, State, or local law enforcement

agency or a prosecutor solely in connection with and for

use in a bona fide criminal investigation or prosecution

and then only such information as pertains to the

geographic jurisdiction of the law enforcement agency

requesting the disclosure and not for use in any civil

action or proceeding other than an action or proceeding

commenced by the Bureau of Alcohol, Tobacco, Fire-

arms, and Explosives, or a review of such an action or

proceeding, to enforce the provisions of chapter 44 of

such title [18 USCS §§ 921 et seq.], and all such data

shall be immune from legal process and shall not be

subject to subpoena or other discovery in any civil action

in a State or Federal court or in any administrative

proceeding other than a proceeding commenced by the

Bureau of Alcohol, Tobacco, Firearms, and Explosives

to enforce the provisions of that chapter, or a review of

such an action or proceeding; except that this proviso

shall not be construed to prevent the disclosure of

statistical information concerning total production,

importation, and exportation by each licensed importer

(as defined in section 921(a)(9) of such title) and li-

censed manufacturer (as defined in section 921(a)(10) of

such title).

Pub. L. No. 108-447, 118 Stat. 2809, 2859-60, codified as

amended at 18 U.S.C. § 923 note (2004) (emphasis added).

The plain language of the Act, particularly the italicized

passage that makes the data at issue in this case “immune

from legal process,” supports ATF’s view that the legal

landscape has changed dramatically since our previous

No. 01-2167 5

opinion. Like the two previous riders, the 2005 rider

deprives ATF of funding to act on requests for disclosure of

the firearms trace database and the data assembled

pursuant to 18 U.S.C. §§ 923(g), 923(g)(3), and 923(g)(7),

which all parties agree includes the data at issue in this

case. Critically, the 2005 rider adds the phrase “and all

such data shall be immune from legal process and shall not

be subject to subpoena or other discovery in any civil action

in a State or Federal court.” Congress’ obvious intention in

adding the “immune from legal process” language to the

funding restriction that existed under prior riders was to

cut off access to the databases for any reason not related to

law enforcement. The public is now doubly restricted from

access to these databases: first, the funding restriction

prevents the federal agency that collects the data from

acting on a request for disclosure; and second, the request-

ing party has no judicial remedy as the information is

immune from legal process and not subject to subpoena or

otherwise discoverable in a civil action. The new “immune

from legal process” language in the rider also demonstrates

that our solution to the funding restriction in the prior

riders—appointment of a special master to be paid for by

the City—is no longer tenable.

The City bravely takes the contrary position and argues

that the rider is no different than its predecessors. Accord-

ing to the City, the 2005 rider, like the two previous riders,

simply prohibits the use of appropriated funds to dis-

close trace and multiple sales data. The argument fails

to account for Congress’ mandate that “all such data

shall be immune from legal process.” To get around this

language, which clearly distinguishes the 2005 rider from

the prior riders, the City argues that the antecedent to the

phrase “such data” is ambiguous. We see no ambiguity.1 The

1

If we agreed with the City’s argument that the statutory

(continued...)

6 No. 01-2167

only data mentioned in the paragraph prior to the reference

to “such data” is the tracing data and the data regarding

multiple sales, and those data are the clear antecedent to

the phrase “such data.” The City ignores this common-sense

reading of the statute and asserts that “such data” refers to

the data requested by law enforcement agencies for use in

criminal investigations (the rider allows use of appropriated

funds for these requests). That is not a reasonable reading

of the statute; a plain reading of the statute illustrates that

it refers generally to the multiple sales and tracing data,

rather than to some subset of that data. Furthermore,

Congress’ clear intention in adding the “immune from legal

process” language was to cut off access to the databases.

Under the City’s strained construction of the statute, the

portion of the databases in law enforcement’s hands

would be “immune from legal process,” but the remaining

portion of the databases, the extensive data not produced to

law enforcement, would be accessible to anyone willing to

pay for it. Such a reading would thwart Congress’ intention

to bar access to the databases, and we accordingly reject it.

Smith v. Bowen, 815 F.2d 1152, 1154 (7th Cir. 1987) (noting

that a construction is inappropriate “if it would lead to

absurd results or would thwart the obvious purposes of the

statute.”).

1

(...continued)

language is ambiguous (which we do not), we would turn to

the legislative history of the statute. Exxon Mobil Corp. v.

Allapattah Servs., Inc., 125 S.Ct. 2611, 2626 (2005). When pressed

at oral argument, counsel for the City conceded that “the people

who wrote the legislative history are not our friends.” We agree

with the concession; the relevant legislative history clearly

supports ATF’s position and fails to offer a hint of support for the

City’s position. House Report to 2005 Act at 30. More importantly,

though, the people who wrote the text of the statute and enacted

it into law were not the City’s friends.

No. 01-2167 7

The City next questions whether a special master’s

retrieval of data is a form of “legal process” within the

meaning of the phrase, “and all such data shall be immune

from legal process.” This is an artificially narrow character-

ization of the situation. We issued an opinion, subject

to appeal, ordering ATF to permit a special master to en-

ter its property and retrieve information to be turned

over to the City. In other words, the City’s entitlement

to the information, along with the special master’s appoint-

ment and charge, derived from a court order based

on federal law. Such a court order is unquestionably

“legal process.” See Washington State Dep’t of Social &

Health Servs. v. Guardianship Estate of Keffeler, 537 U.S.

371, 385, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003) (analyzing

meaning of Social Security definition of “legal process” and

noting that it entails “utilization of some judicial or quasi-

judicial mechanism . . . by which control over property

passes from one person to another.”). See also Black’s Law

Dictionary 1370 (4th ed. 1968) (defining “legal process” as

“a writ, warrant, mandate, or other process issuing from a

court of justice, such as an attachment, execution, injunc-

tion, etc.”).

We also think that the 2005 Act amounts to a change

in substantive FOIA law in that it exempts from dis-

closure data previously available to the public under

FOIA. Cf. City of Chicago I, 287 F.3d at 631 (concluding

that FOIA required ATF to disclose the tracing and multi-

ple sales data to the City); City of Chicago II, 384 F.3d at

435 (same), with 18 U.S.C. § 923 (barring disclosure of

tracing and multiple sales data). FOIA’s Exemption 3

provides that the statute’s general duty of disclosure does

not apply to matters “specifically exempted from disclosure

by statute . . . provided that such statute . . . requires that

the matters be withheld from the public in such a manner

as to leave no discretion on the issue . . . or refers to

particular types of matters to be withheld.” 5 U.S.C. §

8 No. 01-2167

552(b)(3). In the instant case, Congress could not have been

more specific about what types of records should be with-

held: “[T]he contents of the Firearms Trace System data-

base . . . and . . . any information required to be kept by

licensees pursuant to section 923(g) of title 18, United

States Code, or required to be reported pursuant to para-

graphs (3) and (7) of such section 923(g) . . . .” 18 U.S.C.

§ 923. Moreover, the funding restriction deprives ATF of

any discretion to act on the matter. Finally, although

Congress did not specifically use the verb “withhold” when

referring to the trace and sales data, its intent to bar access

to the information is unmistakable. Prior to the rider, a

requesting party could obtain the information through ATF

or the courts. In the 2005 rider, Congress blocked both

avenues of relief by stripping ATF and the courts of the

ability to act on the public’s requests, effectively exempting

the information from disclosure. As we have observed on

prior occasions, “it is not adequate discharge of duty for

courts to say: We see what you are driving at, but you have

not said it, and therefore we shall go on as before.” Thomas

v. Peters, 48 F.3d 1000, 1011 (7th Cir. 1995) (Easterbrook,

J., concurring) (citing Johnson v. United States, 163 F. 30,

32 (1st Cir. 1908) (Holmes, J.)). We accordingly conclude

that the new rider qualifies as an Exemption 3 statute and

substantively bars disclosure of the databases at issue.

The City, for its part, maintains that the 2005 rider did

not effect a change in the law. According to the City and

various amici, Congressional intent on the matter is unclear

and this lack of clarity is even more significant considering

that the relevant language was a very small part of an

extensive appropriations bill. We disagree. First, as ex-

plained above, Congress has clearly expressed its intent to

bar access to the information. Congressional intent becomes

even clearer when one considers the history of this litiga-

tion. In our prior opinion, we concluded that the 2003 and

2004 measures did not specifically exempt the databases

No. 01-2167 9

from disclosure; they merely prohibited the use of appropri-

ated funds to disclose the information. City of Chicago II,

384 F.3d at 432-33. In the 2005 Act, Congress responded to

our conclusion that this ban was merely about funding by

taking away any possible judicial remedy for discovery of

the information. The only reasonable explanation for

Congress’ action is that it intended to preclude disclosure of

the information. As to the fact that this was appropriations

legislation, the City and amici raise various policy concerns.

Even if we shared their concerns, such policy considerations

do not justify the result they seek; we cannot ignore clear

expressions of Congressional intent, regardless of whether

the end product is an appropriations rider or a statute that

has proceeded through the more typical avenues of delibera-

tion. See Robertson v. Seattle Audubon Society, 503 U.S.

429, 440, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992) (“Con-

gress . . . may amend substantive law in an appropria-

tions statute, as long as it does so clearly.”); Metro Broad-

casting, Inc. v. FCC, 497 U.S. 547, 578 n.29, 110 S.Ct. 2997,

111 L.Ed.2d 445 (1990), vacated on other grounds

by Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115

S.Ct. 2097, 132 L.Ed.2d 158 (“Appropriations Acts, like any

other laws, are binding because they are ‘passe[d] [by] both

Houses . . . and signed by the President.’ ”).

The remaining questions stem from the fact that the 2005

Act is intervening legislation enacted while this case was on

appeal. ATF does not see this as a problem; it contends that

the 2005 Act applies in this case “under the settled principle

that a court is to apply the law in effect at the time the

court rules.” ATF Supp. Brief on Rehearing at 9. The issue

is not as well-settled as ATF would have it. Indeed, in

Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483.

128 L.Ed.2d 229 (1994), a case involving intervening

legislation that was held not to apply to cases pending on

appeal, the Court acknowledged the apparent tension

between the canon that “a court is to apply the law in effect

10 No. 01-2167

at the time it renders its decision” and the axiom that

“retroactivity is not favored in the law.” Id. at 264. The

Court explained that the two principles can coexist because

prospectivity is only a default rule, making it possible to

apply the law in effect at the time of the decision in appro-

priate situations. Id. at 272-73.

We think that this is a situation where it is appropriate

to apply the law in effect at the time of our ruling. Congress

did not specifically authorize application of the 2005 Act to

pending cases. Nevertheless, “[e]ven absent legislative

authorization, application of new statutes passed after the

events in suit is unquestionably proper in many situations.

When the intervening statute authorizes or affects the

propriety of prospective relief, application of the new

provision is not retroactive.” Landgraf, 511 U.S. at 273. The

City does not want damages from ATF. Rather, it invokes

the court’s jurisdiction under FOIA to “enjoin the agency

from withholding agency records and to order the produc-

tion of any agency records improperly withheld from the

complainant,” 5 U.S.C. § 552(a)(4)(B), and it seeks an order

compelling ATF to turn over data—relief that operates in

futuro, rather than retrospectively. Cf. Landgraf, 511 U.S.

at 282 (declining to apply new rule on compensatory

damages to case on appeal because compensatory damages

“are quintessentially backward looking.”). See also Eco Mfg.

v. Honeywell Int’l, 357 F.3d 649, 652 (7th Cir. 2003). The

intervening 2005 Appropriations Act clearly affects the

propriety of such prospective relief. Furthermore, the

relevant event for assessing retroactivity here is the

disclosure of the withheld data, which is a potential future

event, not a past, completed event. In these circumstances,

“the plaintiff ha[s] no vested right in the decree entered by

the trial court,” Landgraf, 511 U.S. at 274, and it is ac-

cordingly proper to apply the law in effect at the time of our

decision.

No. 01-2167 11

A second question arising from the intervening nature

of this legislation is whether it offends any fundamental

principles of the separation of powers. The Supreme

Court has identified three sets of circumstances where

legislation encroaches on judicial power in a manner that

Article III forbids. Plaut v. Spendthrift Farm, Inc., 514 U.S.

211, 218, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). First, as

explained in United States v. Klein, 80 U.S. 128, 20 L.Ed.

519 (1872), Congress cannot “prescribe rules of decision to

the Judicial Department of the government in cases

pending before it.” Id. at 146. Second, “Congress cannot vest

review of the decisions of Article III courts in officials of the

Executive Branch.” Plaut, 514 U.S. at 218 (citing Hayburn’s

Case, 2 U.S. 409, 1 L.Ed. 436 (1792)). Third, Congress

cannot command federal courts to retroactively open final

judgments. Plaut, 514 U.S. at 219. Recognizing that the

2005 Act does not implicate the last two principles because

it does not vest review of our decisions in the executive

branch or involve a final decision (the case is still pending

on appeal), the City focuses on the rule announced in Klein

that Congress cannot prescribe rules of decision for pending

cases. According to the City, the constitutional infirmity

here is that Congress is engaging in appellate review of our

prior decision by directing the result in this case without

changing the underlying substantive law.

The City’s separation of powers argument depends on the

erroneous premise that the 2005 rider did not change

underlying substantive law. As explained above, the

2005 rider amounts to a substantive change in the underly-

ing law in that it exempts from disclosure data previously

available to the public under FOIA. This conclusion makes

it unnecessary to address the City’s Klein challenge because

“[w]hatever the precise scope of Klein . . . later decisions

have made it clear that its prohibition does not take hold

when Congress ‘amend[s] applicable law.’ ” Plaut, 514 U.S.

at 218 (citing Robertson v. Seattle Audubon Soc., 503 U.S.

12 No. 01-2167

429, 441 (1992)). See also Miller v. French, 530 U.S. 327,

348, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000).

The City’s final bullet is a creative First Amendment

challenge to the 2005 rider. According to the City, “[i]f the

riders are construed to bar disclosure of trace and multiple

sales data, they violate the First Amendment.” City Brief on

Remand at 45. To reach that conclusion, the City relies on

the premise that Congress created a limited public forum

when it enacted FOIA, and maintains that barring disclo-

sure of the databases in question is both unreasonable and

discrimination on the basis of viewpoint. The argument is

without merit. As a preliminary matter, we note that the

First Amendment “does not mandate . . . a right of access to

government information or sources of information within

the government’s control.” Houchins v. KQED, Inc., 438

U.S. 1, 14, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978). In addi-

tion, though the City and amici cite and quote numerous

First Amendment cases, none of the authority assembled is

directly on point or implies that Congress’ ban on disclosure

of the data would be constitutionally problematic. Heavy

emphasis is placed on the Supreme Court’s decision in Legal

Services Corp v. Velazquez, 531 U.S. 533, 121 S.Ct. 1043,

149 L.Ed.2d 63 (2001). But that case, like the other cases

cited, did not involve Congressional limitations on access to

information within the government’s control. Furthermore,

the restriction at issue in Velazquez has little in common

with the rider in the instant case. The Velazquez majority

struck down a law that prohibited recipients of Legal

Services Corporation funding from challenging the validity

of welfare laws, which was a legislative attempt to single

out particular theories and arguments for suppression. Id.

at 537-38. The rider in the instant case, on the other hand,

applies across the board, barring access to the databases

regardless of whether the requester is the NRA, the City, or

some other interested party. Because the City has cited no

authority for the proposition that a Congressional ban on

No. 01-2167 13

the release of certain governmental records violates the

First Amendment, we reject the argument.

III. Conclusion

For the reasons stated herein, we vacate our prior

opinions, reverse the district court, and remand with

instructions to enter judgment in favor of ATF.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-12-05