Michael Alan Crooker v. Bureau of Alcohol, Tobacco & Firearms

MIKVA, Circuit Judge,

concurring:

I join in Judge Edwards’ responsible and well-reasoned opinion for the majority. Ordinarily, I would see no need for a separate statement of my views, but I find the dissent troublesome.

I disagree wholeheartedly with Judge Wilkey’s conclusion that a “new majority” of this court has “decreed a remarkable reversal in both rationale and result” of Jordan v. United States Department of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc). Dissent at 1093, 1118. The composition of this court is different, but so is the nature of the materials whose release under the Freedom of Information Act (FOIA) is at issue here. Jordan concerned “manuals, rules, and guidelines used by a United States Attorney to guide his staff in deciding questions of prosecutorial discretion . . . . ” K. Davis, Administrative Law Treatise § 5.4, at 18 (2d ed. 1980 Supp.). These were materials that at least one of the judges in Jordan found to be “secret law.”

The settled practices of the government, in deciding which cases to prosecute and which cases to divert from the courts are, if not codified “law,” at least as important as any statute to the individual charged with a crime. . . .

The public availability of these general policy manuals will serve fundamental interests in the criminal justice system by helping to assure that the exercise of prosecutorial discretion is even-handed, rational, and consonant with statutory intent, which are touchstones for the proper exercise of such discretion.

591 F.2d at 781 (Bazelon, J., concurring).

In contrast, this dispute concerns a manual of the Bureau of Alcohol, Tobacco & Firearms (BATF) entitled “Surveillance of Premises, Vehicles and Persons — New Agent Training.” This is a pamphlet that tells law-enforcement employees how to catch law-breakers. Michael Crooker, the litigant, is a federal prisoner. He has not disputed that release of the BATF manual will help individuals evade the law. There is a vast difference between the secret substantive and procedural law involved in Jordan and “information that would impede law enforcement efforts” such as the BATF material at issue here. See Cox v. Department of Justice, 576 F.2d 1302, 1309 (8th Cir. 1978). It may not always be a simple matter to analyze particular materials at the margin, of course, but the general distinction is sound. “Lines are not the worse for being narrow if they are drawn on rational considerations.” 10 E. 40th St. Building, Inc. v. Callus, 325 U.S. 578, 584 , 65 S.Ct. 1227, 1230 , 89 L.Ed. 1806 (1945) (Frankfurter, J.). The release of material in Jordan served fundamental public interests and helped police those who police others. Disclosure of the BATF manual would not serve the same interest, and would unquestionably promote “circumvention of agency regulation.” Department of the Air Force v. Rose, 425 U.S. 352, 369 , 96 S.Ct. 1592, 1603 , 48 L.Ed.2d 11 (1976). As the majority opinion emphasizes, nothing in this decision undercuts the result reached in Jordan . It is pejorative to suggest that the court “is playing a legislative game” and engaging in “improper” conduct, dissent at 1093, when the composition of the case is so strikingly different.

It may fairly be asked, of course, whether the factual distinctions between Jordan and this case also justify different dispositions under the law. The portions of Judge Wil-key’s dissent that probe the legislative his *1087 tory and subsequent commentators are praiseworthy. His careful analysis makes some solid arguments, and the fact that a majority of the court disagrees with his conclusion does not diminish their force. 1 Indeed, disputes oyer what is relevant evidence of congressional intent are to be expected when the words of the statute are ambiguous and the legislative history is contradictory. In the end, I concur because I agree with Judge Wilkey’s statement for the court in Vaughn v. Rosen, 523 F.2d 1136, 1142 (D.C.Cir.1975), that even the Senate Report “indicates that the line sought to be drawn is one between minor or trivial matters and those more substantial matters which might be the subject of legitimate public interest.” If Judge Wilkey simply disagreed as to which side of this line the BATF manual falls, there would be no need for this concurrence. There is another side to his dissent, however, that invites challenge.

I find implicit in the dissent a lamentable tendency to scorn the legislative process, an indictment that Judge Wilkey has himself leveled at the majority. He emphasizes “the contradictory Senate and House interpretations of Exemption 2,” and contends that they cannot be reconciled. Dissent at 1093. He relies on several commentators who have charged that the House Report was an “abuse of legislative history,” id. at 1099-1100; he calls it “the product of last minute chicanery,” id. at 1099. Most importantly, he seems to attribute to Congress an obstinate irrationality. Although it ■ is patent that “a reasonable Congress could not have intended to require disclosure of information that would impair law enforcement,” K. Davis, supra at 21, Judge Wilkey concludes that the swarms of witnesses who warned of this effect seemingly to no avail shows that Congress intended exactly the opposite. Dissent at 1100-1104. Hurling judicial invective at legislators and their product hardly squares with respect for the legislative process.

Admittedly, as Judge Leventhal observed in his concurring opinion in Vaughn , the legislative history of Exemption 2 is both “confused” and “obscure.” 2 523 F.2d at *1088 1147 . This provides no excuse for picking with condescension at bits and pieces of the legislative history, however. For example, nothing in the Supreme Court’s offhand statements in Rose forecloses doubt as to whether the Senate Report or the House Report is more reliable. Judge Leventhal, whose expertise on issues of legislative history was second to none, thoroughly demonstrated the error in the argument Judge Wilkey tries to make from their chronology:

The argument that the Senate Report was “available” to the House members is theoretical: The members of the House committee did have the Senate Report, but they departed from it... . As to the mass of members of the House, the realities of the legislative process advise that what they had furnished to them for floor consideration is the bill (here there' were no differences from the Senate bill) and the House Report. They could theoretically send for the Senate Report, but what occasion would there be for such a rare step . . . ? Again as a matter of the legislative reality of the legislative process, each House regards its own position as distinctive, and its members rarely if ever refer to reports of the other chamber.

523 F.2d at 1148 (emphasis added). I suspect that entirely too much has been made of the apparent conflict between the House and Senate Reports both by courts and scholarly commentators, certainly more than any reasonable perspective on the legislative process can support. May not judicial notice be taken of the fact that committee reports are often authored entirely by staff members, and that in the rush and flurry of events active congressmen may never have an opportunity to read these reports at all? As Justice White observed in Cass v. United States, 417 U.S. 72, 83 , 94 S.Ct. 2167, 2173 , 40 L.Ed.2d 668 (1974), “In resolving ambiguity, we must allow ourselves some recognition of the existence of sheer inadvertence in the legislative process” (quoting Schmid v. United States, 436 F.2d 987, 992 (Ct.Cl.1971)). Cf. Perry v. Commerce Loan Co., 383 U.S. 392, 401 , 86 S.Ct. 852, 857 , 15 L.Ed.2d 827 (1966) (inclusion of section in statute found to have been “a legislative oversight”).

Congress is composed of two bodies and 535 individuals; it is too much to expect that it will always speak with flawless consistency and clarity. When it does not, however, the task of courts is to reconcile ambiguous words with congressional policies in order to find a result consonant with what Congress intended to do. 3 “There is no invariable rule for the discovery of that intention. To take a few words from their context and with them thus isolated to attempt to determine their meaning, certainly would not contribute greatly to the discovery of the purpose of the draftsmen of a statute . . . . ” United States v. American Trucking Ass’ns., 310 U.S. 534, 542 , 60 S.Ct. 1059, 1063 , 84 L.Ed. 1345 (1940). If there is a general precept, however, it is that courts must strain to interpret the results of the legislative process as reasonable and not ridiculous. “All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character.” United States v. Kirby, 74 U.S. (7 Wall.) 482, 486-87 , 19 L.Ed. 278 (1868); see Jacobson v. Massachusetts, 197 U.S. 11, 39 , 25 S.Ct. 358, 366 , 49 L.Ed. 643 (1905).

The canon in favor of strict construction is not an inexorable command to override common sense and evident statutory purpose. ... No rule of construction necessitates our acceptance of an interpretation resulting in patently absurd consequences. And the absence of any signifi *1089 cant legislative history, other than has been related, may be indicative that Congress considered that there was no such problem as is now sought to be injected in the statutory wording ....

United States v. Brown, 333 U.S. 18, 25-27 , 68 S.Ct. 376, 379-380 , 92 L.Ed. 442 (1948). In the instant ease, it is irrefutable that Congress did not intend the Freedom of Information Act to provide criminals with the means to evade detection and arrest. “Granted that the present problem could have been obviated by even more astute draftsmanship,” id. at 25, 68 S.Ct. at 379 , there is no excuse for a court to strain to reach such an absurd and unreasonable result. 4 I agree with Judge Wilkey that it is not for us to correct errors of Congress, dissent at 1119, but neither may we ascribe to Congress errors that it clearly did not intend. Judge Wilkey urges a result that makes seofflaws of the Congress, or at least some of its members, and such contumely is unnecessary, unwise, and injudicious.

My second difficulty with Judge Wilkey’s dissent grows out of the first. He tells us that “[t]he test of a judge who has taken an oath to uphold the law is the objectivity with which he interprets and enforces laws of which he thoroughly disapproves.” Dissent at 1121. Where the meaning of legislation is plain, “it must be obeyed.” United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 , 2 L.Ed. 304 (1805) (Marshall, C.J.). It is an equally venerable principle, however, that courts have the duty discussed above to reject constructions that are “absurd” and “to expound [the words of a statute] so as to give some effect to the legislative will. Some latitude of construction, then, must be used.” Wilson v. Mason, 5 U.S. (1 Cranch) 45, 102 , 2 L.Ed. 29 (1801) (Marshall, C. J.). See Huidekoper v. Douglass, 7 U.S. (3 Cranch) 1, 66 , 2 L.Ed. 347 (1805). “The interpretation of the meaning of statutes, as applied to justiciable controversies, is exclusively a judicial function.” United States v. American Trucking Ass'ns., supra, 310 U.S. at 544 , 60 S.Ct. at 1064 .

If statutory interpretation were the simple, even mechanical task that Judge Wil-key implies, there might be a stronger basis for his dissent. There also would be a need for fewer judges, and appeals, and opinions. Unfortunately, our work is not that simple, and his statement that the majority is “playing ... a legislative game,” dissent at 1093, may come across as a denunciation of far more distinguished judges than we. As Justice Frankfurter explained in Carpenters’ Union v. NLRB, 357 U.S. 93 , 78 S.Ct. 1011 , 2 L.Ed.2d 1186 (1958):

The problem raised by these cases affords a striking illustration of the importance of the truism that it is the business of Congress to declare policy and not this Court’s. The judicial function is confined to applying what Congress has enacted after ascertaining what it is that Congress has enacted. But such ascertainment, that is, construing legislation, is nothing like a mechanical endeavor. It could not be accomplished by the subtlest of modern “brain” machines. Because of the infirmities of language and the limited scope of science in legislative drafting, inevitably there enters into the construction of statutes the play of judicial judgment within the limits of the relevant legislative materials.

Id. at 100 , 78 S.Ct. at 1016 . See United States v. American Trucking Ass'ns., supra, 310 U.S. at 544 , 60 S.Ct. at 1064 (Justice Reed); United States v. Kirby, supra, 74 U.S. at 487 (Justice Field) (“The reason of the law in such cases should prevail over its letter”); Civil Rights Cases, 109 U.S. 3, 26 , *1090 3 S.Ct. 18, 32 , 27 L.Ed. 835 (1883) (Justice Harlan) (“It is not the words of the law but the internal sense of it that makes the law: the letter of the law is the body; the sense and reason of the law is the soul”); Church of the Holy Trinity v. United States 143 U.S. 457, 472 , 36 L.Ed. 226 (1892) (Justice Brewer) (“the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute”). Judge Wilkey’s test is either simplistic, or tars so many distinguished judges that the brush is wider than he could possibly defend.

Put another way, Judge Wilkey misapprehends the true distinction between the legislative and the judicial function. An appellate judge as much as a legislator, in Edmund Burke’s words, owes his society “not his industry only, but his judgment.” There are similarities between the two roles that cannot be denied. See, e.g., B. Cardozo, The Nature of the Judicial Process (1921); Hazard, The Supreme Court as a Legislature, 64 Cornell L.Rev. 1 (1978). Both roles require application of reason to statutes, analysis of facts, and the rational treatment of complex issues. This by no way means that appellate judges and legislators are the same, of course, although polemicists with hidden agendas may try to twist the point. The judge becomes an illicit legislator when he goes beyond a dispassionate interpretation of the intent and meaning of the legislature that enacted the law before him.

This observation must raise the question of who it is that truly seeks to legislate here. The majority opinion has applied the Freedom of Information Act in view of the intent of the several legislatures that passed, amended, or resisted amending it. We may have judged erroneously, of course. To paraphrase Justice Jackson, we are neither infallible nor final. Nevertheless, although our judgment may be wrong, it is no less a judgment in good faith. Judge Wilkey rejects any attempt to judge the intent of Congress, and woodenly focuses only on the words of the statute: “Its literal meaning should be given effect.” Dissent at 1104. His version of the literal meaning leads to an absurd result that could not have been contemplated by Congress. Indeed, as Judge Wilkey stated in his decision for the panel that has been vacated, “we may regret that Congress has mandated the disclosure . .. . ” Crooker v. Bureau of Alcohol, Tobacco & Firearms, No. 80-1278 (D.C.Cir. November 12, 1980). He commends the literal application of the statute with an eye toward “an effort to rewrite substantially the Freedom of Information Act” now underway in Congress, dissent at 1120, and confides that “[a]s a policy matter, I hope the Congress does a complete job of revision . . . .” Id. at 1120. Who, then, actually exceeds the bounds of the judicial role and seeks to legislate instead? Who, then, is truly diminishing public confidence in the work of our court?

Finally, I regret that Judge Wilkey chooses to “test” the bonafides of judicial oaths “to uphold the law,” id. at 1121. I think Judge Wilkey can be true to his oath and the rest of the court can be true to theirs even though we disagree as to whether an adjudged felon is authorized by FOIA to utilize the BATF Manual on “Surveillance of Premises, Vehicles and Persons” for his own ends. I wish it had not been necessary to concur in a separate opinion, but the ironies of Judge Wilkey’s dissent should not go unremarked.

. Several of Judge Wilkey’s arguments are less strong than his ardent expression suggests, however. He notes that “the majority of persons who spoke on the subject before the House indicated their belief that Exemption 2 did not cover law enforcement manuals,” dissent at 1105 (emphasis in the original), but none of these witnesses were Members of the House. “Congress has not delegated to unofficial individuals or organizations, which may appear before one of its committees advocating legislation, the authority to construe for it and the public statutes which it enacts. Courts have the authority to do that.” United States v. Kung Chen Fur Corp., 188 F.2d 577, 584 (C.C.P.A.1951).

The dissent also makes much of the fact that the 1976 Government in the Sunshine Act carries over verbatim most of the FOIA exemptions, including the specific language of Exemption 2, but that the House Report to that Act “gives the same narrow interpretation to this exemption as the Senate [Report] did in 1965.” Dissent at 1107 (italics omitted). Judge Wilkey concludes that “by 1976 the House of Representatives had repudiated the sweeping language concerning Exemption 2 contained in its . 1966 report” on FOIA, id. and that under the majority’s “absurd” interpretation either “the two identically worded exemptions have precisely opposite meanings” or else we must interpret Exemption 2 of the Sunshine Act “in a manner contradictory to the unequivocal intent expressed in both committee reports.” Id. at 1109. Aside from the debatable wisdom of construing legislation that is not now before the court, it is not at all clear that the Sunshine Act “would have to be interpreted” in a contradictory or absurd manner. Did Congress truly intend to open agency meetings held to approve investigative manuals of the sort whose release under FOIA is at issue here? Even if both Houses provided clear, uniform guidance on Exemption 2 of the Sunshine Act, of course, that does not bind our interpretation of legislation whose application is invoked in entirely different contexts. “The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.” Cook, “Substance" and “Procedure" in the Conflict of Laws, 42 Yale L.J. 333 , 337 (1933).

. See, e.g., Civiletti, Post-Watergate Legislation in Retrospect, 34 Sw.L.J. 1043, 1046 (1981) (on the whole, FOIA “reflects a conscientious attempt by Congress to balance the general, need for openness in government against the specific needs of law enforcement,” but lack of protec *1088 tion for criminal investigation materials may have been “a legislative error”).

. See, e.g., Minor v. Mechanics’ Bank, 26 U.S. (1 Peters) 46, 64, 7 L.Ed. 47 (1828) (“But no general rule can be laid down upon this subject, further than that that exposition ought to be adopted in this, as in other cases, which carries into effect the true intent and object of the legislature in the enactment.”).

. See United States v. Kirby, 74 U.S. (7 Wall.) 482, 487 , 19 L.Ed. 278 (1868):

The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted, “that whoever draw blood in the streets should be punished with the utmost severity,” did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire — “for he is not to be hanged because he would not stay to be burnt.”