Citizens for Responsibility & Ethics in Washington v. United States Department of Justice

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 2016 Decided January 31, 2017

No. 16-5110

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01291)

Alan B. Morrison argued the cause for appellant. With

him on the briefs was Adam J. Rappaport.

Scott L. Nelson and Rachel M. Clattenburg were on the

brief for amicus curiae Public Citizen, Inc. in support of

appellant.

Daniel Tenny, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Benjamin C. Mizer, Principal Deputy Assistant Attorney

General, and Michael S. Raab, Attorney.

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Before: TATEL and WILKINS, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Section 704 of the Administrative

Procedure Act limits judicial review under that statute to

agency actions “for which there is no other adequate remedy

in a court.” 5 U.S.C. § 704. Appellant filed suit under the

APA to compel the Department of Justice’s Office of Legal

Counsel to meet its disclosure obligations under the “reading-

room” provision of the Freedom of Information Act. 5 U.S.C.

§ 552(a)(2). The district court dismissed the case, concluding

that appellant has an adequate remedy under FOIA. For the

reasons set forth below, we agree and affirm.

I.

“For decades, [the Office of Legal Counsel (OLC)] has

been the most significant centralized source of legal advice

within the Executive Branch.” Trevor W. Morrison, Stare

Decisis in the Office of Legal Counsel, 110 Colum. L. Rev.

1448, 1451 (2010). Indeed, executive-branch officials seek

OLC’s opinion on some of the weightiest matters in our

public life: from the president’s authority to direct the use of

military force without congressional approval, to the

standards governing military interrogation of “alien unlawful

combatants,” to the president’s power to institute a blockade

of Cuba. Office of Legal Counsel, Authority to Use Military

Force in Libya (Apr. 1, 2011); Office of Legal Counsel,

Military Interrogation of Alien Unlawful Combatants Held

Outside the United States (Mar. 14, 2003); Office of Legal

Counsel, Authority of the President to Blockade Cuba (Jan.

25, 1961).

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OLC’s authority to render advice is, in some sense,

nearly as old as the Republic itself. In the Judiciary Act of

1789, Congress authorized the Attorney General “to give his

advice and opinion upon questions of law when required by

the President of the United States, or when requested by the

heads of any of the departments, touching any matters that

may concern their departments.” Act of Sept. 24, 1789, ch.

20, § 35, 1 Stat. 73, 93; see 28 U.S.C. §§ 511-513 (codified as

amended). The Attorney General has, in turn, delegated to

OLC authority to “[p]repar[e] the formal opinions of the

Attorney General; render[] informal opinions and legal advice

to the various agencies of the Government; and assist[] the

Attorney General in the performance of his functions as legal

adviser to the President.” 28 C.F.R. § 0.25; see Luther A.

Huston, The Department of Justice 61 (1967) (recounting the

formation of OLC).

OLC has a “longstanding internal process in place for

regular consideration” of whether to share “significant

opinions” with the public. Memorandum from David J.

Barron, Acting Assistant Attorney General, to Attorneys of

the Office, Best Practices for OLC Legal Advice and Written

Opinions 5 (July 16, 2010). Attorneys who have worked on or

reviewed an opinion give initial recommendations about

whether publication is appropriate that are “forwarded to an

internal publication review committee.” Id. “If the committee

makes a preliminary judgment that the opinion should be

published, the opinion is circulated to the requesting

Executive Branch official or agency and any other agencies

that have interests that might be affected by publication, to

solicit their views” before the committee renders a “final

judgment.” Id. In making this determination, OLC “operates

from the presumption that it should make its significant

opinions fully and promptly available.” Id. An opinion is

deemed significant if, for example, it possesses “potential

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importance . . . to other agencies or officials in the Executive

Branch”; there is a “likelihood that similar questions may

arise in the future”; it is of “historical importance”; or it has

potential significance to OLC’s “overall jurisprudence.” Id.

Other factors militate against disclosure, such as when

publication would “reveal classified or other sensitive

information relating to national security”; “interfere with

federal law enforcement efforts”; undermine “internal

Executive Branch deliberative processes” or “the

confidentiality of information covered by the attorney-client

relationship between OLC and other executive offices”; or

result in the disclosure of documents “that are of little interest

to the public.” Id. at 5–6.

Unsatisfied that these procedures provide the public with

the access the Freedom of Information Act demands,

appellant Citizens for Responsibility and Ethics in

Washington (CREW) initiated this litigation. CREW is a non-

profit corporation whose organizational mission is “to

protect[] the rights of citizens to be informed about the

activities of government officials.” By its own account,

CREW is no stranger to using FOIA to obtain and disseminate

information “about government officials and their actions,”

including OLC. For instance, before commencing this action

it filed a separate FOIA request—not at issue here—“for all

[OLC] opinions discussing the authority of the president as

well as any executive branch agency or agency component to

conduct domestic and foreign surveillance.”

Before filing suit, CREW sent a letter to OLC requesting

that it comply with its obligations under FOIA section

552(a)(2)—the so-called “reading-room” provision—which

requires agencies to “make available for public inspection in

an electronic format” certain records, including “final

opinions . . . made in the adjudication of cases” and “those

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statements of policy and interpretations which have been

adopted by the agency and are not published in the Federal

Register.” Letter to Assistant Attorney General Virginia A.

Seitz from Anne L. Weismann (July 3, 2013); 5 U.S.C.

§ 552(a)(2). CREW argued that OLC opinions are subject to

disclosure under the reading-room provision because they

“function as binding law on the executive branch.” Letter to

Assistant Attorney General Seitz.

In response, OLC explained that, in its view, FOIA

exempts OLC opinions from disclosure because they are

“ordinarily covered by [FOIA’s] attorney-client and

deliberative process privileges” and, “as confidential and pre-

decisional legal advice, . . . constitute neither ‘final

opinions . . . made in the adjudication of cases’ nor

‘statements of policy and interpretations which have been

adopted by the agency.’” Letter to Anne L. Weismann from

Deputy Assistant Attorney General John E. Bies (Aug. 20,

2013). “Nevertheless,” OLC stated, it “make[s] an

individualized, case-by-case determination with respect to

whether each opinion . . . is appropriate for publication” and,

in response to FOIA requests seeking specific records,

“consider[s] whether to waive applicable privileges and

release the opinion as a matter of administrative discretion.”

Id.

Shortly after receiving OLC’s response, CREW

commenced this action against DOJ and certain DOJ officials.

The amended complaint alleges a claim under the APA, 5

U.S.C. § 702, challenging as arbitrary, capricious, and

contrary to law OLC’s purported failure to meets its

disclosure obligations under FOIA’s reading-room

requirements, 5 U.S.C. § 552(a)(2). As its primary form of

relief, CREW seeks an injunction directing OLC to disclose

all documents subject to that provision. The injunction would

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have four features: (1) it would apply prospectively, that is, to

documents not yet created; (2) it would impose an affirmative

obligation to disclose, that is, OLC would disclose documents

regardless of whether someone specifically requests a given

document; (3) it would mandate that OLC make documents

available to the public, as opposed to just CREW; and (4) it

would require OLC to make available to the public an index

of all such documents.

DOJ moved to dismiss the amended complaint on

multiple grounds, and on March 7, 2016, the district court

granted that motion. As the court explained, because CREW

challenges OLC’s actions under the APA, “it must satisfy the

APA’s predicate requirements for bringing suit,” namely, that

“there is no other adequate remedy” available. Citizens for

Responsibility and Ethics in Washington v. DOJ, 164 F. Supp.

3d 145, 151 (D.D.C. 2016); 5 U.S.C. § 704. The district court

concluded that FOIA provides an adequate remedy, thus

barring CREW’s APA claim.

CREW now appeals. Our review is de novo.

II.

FOIA imposes on federal agencies both reactive and

affirmative obligations to make information available to the

public. In the former category, the act’s most familiar

provision, section 552(a)(3) provides that agencies must

“make . . . records promptly available” in response to specific

requests. 5 U.S.C. § 552(a)(3)(A). In the latter category are

two distinct affirmative disclosure obligations. One, section

552(a)(1), requires agencies to “publish in the Federal

Register” certain records, such as “substantive rules of

general applicability adopted as authorized by law.” Id.

§§ 552(a)(1), (a)(1)(d). The other, section 552(a)(2)—the

reading-room provision at issue in this case—requires

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agencies to “make [certain records] available for public

inspection in an electronic format[,]” including “statements of

policy and interpretations which have been adopted by the

agency and are not published in the Federal Register.” Id.

§§ 552(a)(2), (a)(2)(B).

To breathe life into these obligations, FOIA provides for

judicial review. Section 552(a)(4)(B) grants district courts

jurisdiction to review “de novo” an agency’s decision to

withhold records and empowers courts “to enjoin the agency

from withholding agency records and to order the production

of any agency records improperly withheld from the

complainant.” Id. § 552(a)(4)(B). Our precedent makes clear

that FOIA’s “remedial provision . . . governs judicial review

of all three types of documents”—that is, requests for

information under sections 552(a)(1), (2), or (3). Kennecott

Utah Copper Corp. v. Department of Interior, 88 F.3d 1191,

1202 (D.C. Cir. 1996). Equally certain under our case law, a

plaintiff may bring an action under FOIA to enforce the

reading-room provision, and may do so without first making a

request for specific records under section 552(a)(3). Irons v.

Schuyler, 465 F.2d 608, 614 (D.C. Cir. 1972) (“[T]he

opinions and orders referred to in Section 552(a)(2), when

properly requested, are required to be made available, and . . .

such requirement is judicially enforceable without further

identification under Section 552(a)(3), even though the

agency has failed to make them available as required by

Section 552(a)(2).”).

Concerned that FOIA’s remedial provision does not

empower a district court to order all the relief necessary to

force an agency to meet its reading-room obligations, CREW

brought its claim under the APA. As noted above, however,

APA section 704 limits review under that statute to agency

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actions “for which there is no other adequate remedy in a

court.” 5 U.S.C. § 704.

The issue in this case—whether CREW can pursue this

suit under the APA because FOIA does not provide an

“adequate remedy”—is easy to state but difficult to resolve.

Indeed, this is a case of first impression, as none of our

section 704 cases concerns FOIA, nor do our FOIA cases

address section 704. See Kennecott, 88 F.3d at 1203

(declining to address whether the APA authorizes a district

court to order publication of a document for an alleged

violation of FOIA section 552(a)(1)); Tax Analysts v. IRS, 117

F.3d 607, 610 n.4 (D.C. Cir. 1997) (“Kennecott left open the

question whether other sources of law might authorize

additional remedial orders in FOIA cases.”).

Befitting this novel question, the parties’ briefs are both

excellent and interesting. Both CREW and the Government

appear to narrowly construe FOIA’s remedial provision as

empowering a district court faced with a violation of the

reading-room requirement to order only the disclosure to a

plaintiff of extant documents in response to a specific request.

But they have significantly different views of the

consequences. According to CREW, this gap between the

relief it seeks and the relief available under FOIA means that

a claim under FOIA cannot qualify as an “adequate remedy”

barring its APA claim. According to DOJ, however, because

an alternative remedy need not be “identical” in order to be

“adequate,” CREW’s APA claim fails even under a

constricted view of the relief FOIA affords. In a helpful

amicus brief, Public Citizen argues that both are wrong. It

urges us to read FOIA’s remedial provision broadly, as

encompassing all the relief sought by CREW.

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To resolve this issue, we begin by considering whether

CREW may obtain the relief it wants under FOIA. For if it

can, as Public Citizen thinks, then we need not explore what

“adequate” means under the APA. But if, as CREW believes,

FOIA does not provide the relief it seeks, then we must

consider whether, as the Government insists, FOIA

nonetheless offers an adequate remedy.

III.

CREW seeks an injunction with four features it believes

are necessary to guarantee OLC meets its reading-room

obligations. First, the injunction would have prospective

effect—i.e., it would apply to opinions not yet written.

Second, it would impose an affirmative obligation to disclose

on OLC—i.e., without need for a specific prior request. Third,

it would mandate disclosure to the public, as opposed to just

CREW. Fourth, it would require OLC to make available to the

public an index detailing all documents subject to the reading-

room provision.

We start with the proposition that FOIA section

552(a)(4)(B) vests courts with broad equitable authority.

True, as the Supreme Court explained in Renegotiation Board

v. Bannercraft Clothing Co., 415 U.S. 1 (1974), that provision

“explicitly confers jurisdiction to grant injunctive relief of a

described type, namely, ‘to enjoin the agency from

withholding agency records and to order the production of

any agency records improperly withheld from the

complainant.’” Id. at 18 (citing 5 U.S.C. § 552(a)(4)(B)). But

as the Court made clear in the same decision, Congress did

not intend that language “to limit the inherent powers of an

equity court” in FOIA cases. Id. at 20; see Payne Enterprises

v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (“FOIA

imposes no limits on courts’ equitable powers in enforcing its

terms.” (citing Renegotiaton Board, 415 U.S. at 19–20)).

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“Once invoked, the scope of a district court’s equitable

powers . . . is broad, for breadth and flexibility are inherent in

equitable remedies.” Brown v. Plata, 563 U.S. 493, 538

(2011) (citations and internal quotation marks omitted). This

is especially so where, as here, “federal law is at issue and

‘the public interest is involved,’ [as] a federal court's

‘equitable powers assume an even broader and more flexible

character than when only a private controversy is at stake.’”

Kansas v. Nebraska, 135 S. Ct. 1042, 1053 (2015) (quoting

Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)).

This circuit’s case law reflects the wide latitude courts

possess to fashion remedies under FOIA, including the power

to issue prospective injunctive relief. In Payne, we confronted

the Air Force’s repeated failure to disclose documents in

response to a company’s FOIA requests. 837 F.2d at 487.

Frustrated by the need to pursue successive and “invariably

successful” challenges every time it sought such documents,

the company filed suit seeking an “injunct[ion] . . . to compel

[the Air Force] to release” the documents. Id. at 487. We held

that the company “ha[d] an undeniable right” to the sought-

after “information . . . and [was] entitled to a judgment in

support of its claim.” Id. at 494. Accordingly, we instructed

the district court to on remand “consider the propriety of

injunctive relief.” Id. at 495. “In particular,” we directed the

court to “evaluate the likelihood that the Air Force will return

to its illicit practice of delay in the absence of an injunction.”

Id.

Our later decisions confirm that a plaintiff may challenge

an agency’s “policy or practice” where it “will impair the

party’s lawful access to information in the future.” Newport

Aeronautical Sales v. Air Force, 684 F.3d. 160, 164 (D.C. Cir.

2012) (quoting Payne, 837 F.2d at 491) (emphasis added). In

other contexts, we have recognized courts’ power to order

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relief beyond the simple release of extant records. See Morley

v. CIA, 508 F.3d 1108, 1120 (D.C. Cir. 2007) (acknowledging

a district court’s power to direct an agency to conduct

additional searches for records in response to a FOIA

request).

Following Renegotiation Board, Payne, and these other

decisions, we have little trouble concluding that a district

court possesses authority to grant the first two categories of

relief CREW seeks—a prospective injunction with an

affirmative duty to disclose. The third and fourth categories of

relief present a trickier problem.

Although broad, courts’ remedial authority under section

552(a)(4)(B) is not boundless. For instance, in Kissinger v.

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

(1980), the Supreme Court held that “federal courts have no

authority to order the production” of records no longer in an

agency’s possession “even if a document requested under the

FOIA is wrongfully” in the hands of a third party. Id. at 139.

In Kennecott, we announced another limitation on FOIA

remedial power of particular relevance to this case. There, the

plaintiff filed an action under FOIA seeking an injunction

requiring publication in the Federal Register, pursuant to

section 552(a)(1), of regulations that had been withdrawn by

the Interior Department. Kennecott, 88 F.3d at 1201.

Rejecting this request, we held that section 552(a)(4)(B)

“does not authorize district courts to order publication” of

documents subject to the provisions of section 552(a)(1). Id.

at 1202. Although acknowledging that “it might seem strange

for Congress to command agencies to ‘currently publish’ or

‘promptly publish’ documents, without in the same statute

providing courts with power to order publication,” we

nonetheless concluded “that is exactly what Congress

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intended.” Id. at 1202–03. Section 552(a)(4)(B), we said, “is

aimed at relieving the injury suffered by the individual

complainant, not by the general public” as “[i]t allows district

courts to order ‘the production of any agency records

improperly withheld from the complainant,’ not agency

records withheld from the public.” Id. at 1203 (citing 5 U.S.C.

§ 552(a)(4)(B)) (emphasis in original). Distinguishing

between “[p]roviding documents to the individual” and

“ordering publication[,]” we held that, under section

552(a)(4)(B), a district court is without authority to do the

latter. Id.

Given Kennecott’s construction of section 552(a)(4)(B),

we think it clear that a court has no authority under FOIA to

issue an injunction mandating that an agency “make available

for public inspection” documents subject to the reading-room

provision—the third category of relief CREW seeks. 5 U.S.C.

§ 552(a)(2). Authorizing a court to order an agency to make

documents “available for public inspection” would reach

beyond section 552(a)(4)(B)’s focus on “relieving the injury

suffered by the individual complainant” to remedy an injury

suffered by “the general public”—a result our precedent

forecloses. Id. at 1203. That said, nothing in Kennecott

prevents a district court from, consistent with section

552(a)(4)(B), ordering an agency to provide to the plaintiff

documents covered by the reading-room provision.

The same analysis governs the fourth type of relief

CREW seeks: an order mandating that OLC “maintain and

make available for public inspection in an electronic format

current indexes providing identifying information as to any

matter . . . required by [section 552(a)(2)] to be made

available or published.” 5 U.S.C. § 552(a)(2) (emphasis

added). For just as a district court lacks authority to order an

agency to “make available for public inspection” documents

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subject to the reading-room provision, it is without authority

to mandate than an agency make such an index available to

the public. 5 U.S.C. § 552(a)(2). We see no obstacle,

however, to a district court, in the appropriate case, and as an

extension of its broad equitable power to fashion FOIA relief,

ordering an agency to furnish such an index to a plaintiff.

Indeed, given that Kissinger described section 552(a)(2)’s

indexing requirement as one of FOIA’s “very limited record-

creating obligations,” Kissinger, 445 U.S. at 152 n.7

(emphasis added), directing an agency to turn over such an

index falls comfortably within the textual bounds of section

552(a)(4)(B)’s grant of authority to “enjoin the agency from

withholding agency records and to order the production of

agency records improperly withheld from the complainant.”

5 U.S.C. 552(a)(2) (emphasis added); see American

Immigration Lawyers Association v. Executive Office for

Immigration Review, 830 F.3d 667, 678 (D.C. Cir. 2016)

(noting that FOIA itself “provides no definition of the term

‘record.’”).

Public Citizen resists these conclusions and urges us to

read Kennecott narrowly, as leaving a court’s authority to

fashion a remedy for a violation of section 552(a)(2)

unconstrained. It points out that Kennecott considered a

violation of section 552(a)(1), not section 552(a)(2)’s reading-

room requirement. But essential to Kennecott’s holding is its

interpretation of the scope of section 552(a)(4)(B), FOIA’s

remedial provision, at issue here. Public Citizen also argues

that Kennecott “focused on the second clause of [section]

552(a)(4)(B), allowing ‘district courts to order the production

of any agency records improperly withheld from the

complainant,’ and did not examine the scope of the court’s

authority under the first clause, which gives courts the power

‘to enjoin the agency from withholding any records,’ without

any limitations.” Amicus Br. 19. The Kennecott court,

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however, did not so cabin its holding; rather it construed the

scope of section 552(a)(4)(B) as a whole. See e.g., 88 F.3d at

1203 (“We think it significant . . . that [section]

552(a)(4)(B) is aimed at relieving the injury suffered by the

individual complainant, not by the general public.”).

Moreover, in arriving at its holding, the Kennecott court

necessarily—albeit implicitly—rejected this argument, and

we are bound “not only [by] the result” of a prior opinion “but

also [by] those portions of the opinion necessary to that

result.” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67

(1996). And given that the parties in Kennecott raised the very

textual argument advanced by Public Citizen, we are hardly

free to avoid the otherwise binding nature of our precedent on

the grounds that the question was one that “merely lurk[ed] in

the record, neither brought to the attention of the court nor

ruled upon,” LaShawn A. v. Barry, 87 F.3d 1389, 1395 n.7

(D.C. Cir. 1996) (en banc); see Joint Reply Br. Kennecott

Utah Copper Corp. and Industry and Sanitation District

Petitioners at 13, Kennecott, 88 F.3d 1191 (No. 93-1700).

To sum up, then, CREW may, in a FOIA suit to enforce

section 552(a)(2), seek an injunction that would (1) apply

prospectively, and would (2) impose an affirmative obligation

to disclose upon OLC, but that would (3) require disclosure of

documents and indices only to CREW, not disclosure to the

public. Having concluded that FOIA makes available all the

relief sought by CREW except disclosure to the public, we

now consider whether FOIA constitutes an “adequate

remedy” preclusive of CREW’s APA claim despite this gap

between the relief sought and the relief FOIA affords. 5

U.S.C. § 704.

IV.

Section 704 reflects Congress’ judgment that “the general

grant of review in the APA” ought not “duplicate existing

procedures for review of agency action” or “provide

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additional judicial remedies in situations where Congress has

provided special and adequate review procedures.” Bowen v.

Massachusetts, 487 U.S. 879, 903 (1988) (citation omitted).

Courts must, however, avoid lightly “constru[ing] [section

704] to defeat the [APA’s] central purpose of providing a

broad spectrum of judicial review of agency action.” Id.

When considering whether an alternative remedy is

“adequate” and therefore preclusive of APA review, we look

for “clear and convincing evidence” of “legislative intent” to

create a special, alternative remedy and thereby bar APA

review. Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009)

(quoting El Rio Santa Cruz Neighborhood Health Center v.

HHS, 396 F.3d 1265, 1270 (D.C. Cir. 2005)). Our cases have

identified that intent—or its absence—through several means.

For example, where Congress has provided “an independent

cause of action or an alternative review procedure” in a

purported alternative, we have found clear markers of

legislative intent to preclude. El Rio, 396 F.3d at 1270. An

alternative that provides for de novo district-court review of

the challenged agency action offers further evidence of

Congress’ will, given the frequent “incompat[ibility]”

between de novo review and the APA’s deferential standards.

Environmental Defense Fund v. Reilly, 909 F.2d 1497, 1506

(D.C. Cir. 1990); El Rio, 396 F.3d at 1270 (“[W]here a statute

affords an opportunity for de novo district-court review, the

court has held that APA review was precluded because

‘Congress did not intend to permit a litigant challenging an

administrative denial . . . to utilize simultaneously both [the

review provision] and the APA.” (quoting Environmental

Defense Fund, 909 F.2d at 1501 (alteration in original))). That

said, if the very existence of an alternative remedy is

“doubtful,” Bowen, 487 U.S. at 905, or “uncertain[],” El Rio,

396 F.3d at 1274, there is scant basis to displace APA review.

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Because section 704 requires only an adequate

alternative, “this court has held that the alternative remedy

need not provide relief identical to relief under the APA” in

order to have preclusive effect. Garcia, 563 F.3d at 522

(emphasis added); see El Rio, 396 F.3d at 1272 (explaining

that an alternative remedy need offer only relief of “the same

genre” to “preclude APA review.” (citation omitted)). Still, in

determining whether alternative remedies suffice to preclude

APA review, courts have “independently examined the[ir]

adequacy.” Women’s Equity Action League v. Cavazos, 906

F.2d 742, 751 (D.C. Cir. 1990). In Bowen, for instance, the

Court rejected as inadequate and non-preclusive the

alternative remedy of bringing a claim for “monetary

relief . . . in the Claims Court under the Tucker Act.” 487 U.S.

at 904. “The Claims Court,” the Supreme Court observed,

“does not have the general equitable powers of a district court

to grant prospective relief” and the Court was “not willing to

assume, categorically, that a naked money judgment against

the United States will always be an adequate substitute for

prospective relief.” Id. at 905. In Garcia, conversely, we

affirmed the dismissal of an APA claim in part because the

alternative remedy offered “declaratory and injunctive relief

against the agency, in addition to money damages”—relief we

deemed “[i]f anything” superior to that available under the

APA. 563 F.3d at 525.

By these lights, we have little doubt that FOIA offers an

“adequate remedy” within the meaning of section 704, as it

exhibits all of the indicators we have found to signify

Congressional intent. FOIA contains an express private right

of action and provides that review in such cases shall be “de

novo.” 5 U.S.C. § 552(a)(4)(B). As opposed to the “uncertain”

and “doubtful” remedies we have rejected as insufficient to

preclude APA review, our precedent establishes that a

plaintiff in CREW’s position may bring a FOIA claim to

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enforce the reading-room provision. Irons, 465 F.2d at 614.

Indeed, in FOIA Congress established “a carefully balanced

scheme of public rights and agency obligations designed to

foster greater access to agency records than existed prior to its

enactment.” Kissinger, 445 U.S. at 150. The creation of both

agency obligations and a mechanism for judicial enforcement

in the same legislation suggests that FOIA itself strikes the

balance between statutory duties and judicial enforcement that

Congress desired. Considered together, FOIA offers CREW

precisely the kind of “special and adequate review

procedure[]” that Congress immunized from “duplic[ative]”

APA review. Bowen, 487 U.S. at 903.

Moreover, as our earlier discussion of the relief available

under section 552(a)(4)(B) makes plain, we see no yawning

gap between the relief FOIA affords and the relief CREW

seeks under the APA. Put another way, this case differs

dramatically from Bowen, in which the Court rejected an

alternative remedy that offered only monetary relief as an

inadequate substitute for the “general equitable powers of a

district court.” 487 U.S. at 905. True, courts lack authority

under FOIA to order agencies to “make [records] available for

public inspection.” 5 U.S.C. § 552(a)(2). Significantly for our

purposes, however, CREW itself can gain access to all the

records it seeks.

Thus, despite some mismatch between the relief sought

and the relief available, FOIA offers an “adequate remedy”

within the meaning of section 704 such that CREW’s APA

claim is barred. 5 U.S.C § 704.

V.

Three parting thoughts.

18

First, given the many indicia of Congressional intent that

counsel in favor of our conclusion today, no one should

understand our decision as “assum[ing], categorically,”—i.e.,

outside the FOIA context—that an alternative remedy will

preclude APA relief even if that alternative circumscribes

courts’ authority to order appropriate injunctive relief. See

Bowen, 487 U.S. at 905.

Second, our determination that FOIA is the proper

vehicle for CREW’s claim is entirely distinct from the

question whether CREW is entitled to relief. That merits

question—whether the reading-room provision commands

disclosure of any OLC opinions—awaits a different day and a

different case.

Finally, even if CREW prevails on the merits, our

conclusion that certain relief is available under FOIA says

nothing about its propriety in an individual case. Indeed, we

expect that only a rare instance of agency delinquency in

meeting its duties under the reading-room provision will

warrant a prospective injunction with an affirmative duty to

disclose subject records to a plaintiff. See Payne, 837 F.2d at

494–95.

For the foregoing reasons, we affirm the district court’s

dismissal of the case.

So ordered.