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[NOT YET SCHEDULED FOR ORAL ARGUMENT]

No. 08-5188

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff-Appellant,

V.

OFFICE OF ADMINISTRATION, Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLEE

GREGORY G. KATSAS Assistant Attorney General

JEFFREY A. TAYLOR United States Attorney

MARK B. STERN

(202)514-5089

THOMAS M. BONDY

(202)514-4825

Attorneys, Appellate Staff Civil Division, Room 7535 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties And Amici.

Plaintiff in the district court, and appellant in this appeal, is Citizens for

Responsibility and Ethics in Washington.

Defendant in the district court, and appellee in this appeal, is the Office of

Administration, a component of the Executive Office of the President.

Judicial Watch, Inc., was amicus curiae in support of plaintiff in the district

court, and is amicus curiae in support of appellant in this appeal.

B. Rulings Under Review.

The ruling under review is the decision in Citizens for Responsibility and

Ethics in Washington v. Office of Administration, Civil Action No. 07-964 (CKK)

(D.D.C. June 16, 2008) (Judge Colleen Kollar-Kotelly). The ruling is reported at

559 F. Supp. 2d 9, and is reproduced in the Joint Appendix at JA 322-61.

C Related Cases.

This case has not been before this or any other Court. Counsel for appellee

are not aware of any related cases.

THOMAS M. BONDY

Attorney for Appellee

(202)514-4825

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

GLOSSARY

STATEMENT OF JURISDICTION

¯

STATEMENT OF THE ISSUE

STATEMENT OF THE CASE

STATEMENT OF FACTS

,

I. Statutory Background: The FOIA And Its Definition Of"Agency"

II. Prior Proceedings

A. Plaintiff’s Complaint And The Government’s Motion For Judgment On The Pleadings

B. OA’s Motion To Dismiss And The District Court’s Decision Granting That Motion

SUMMARY OF ARGUMENT

STANDARD OF REVIEW

ARGUMENT

".

THE EXECUTIVE OFFICE OF THE PRESIDENT’S OFFICE OF ADMINISTRATION IS NOT AN "AGENCY" WITHIN THE MEANING OF THE FOIA

OA Has No Substantial Independent Authority And Its Function Is To Advise And Assist ’

The President

1

2

2

2

2

3

3

5

9

11

12

12

12

Plaintiff Demonstrates No Relevant Similarities Between The Administrative Office And Any Component Of The EOP That This Court Has Deemed A FOIA Agency

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

18

35

TABLE OF AUTHORITIES

Cases:

~

Armstrong v. EOP, 877 F. Supp. 690 (D.D.C. 1995)

29, 30

* Armstrong v. Exec. Office of the President, 90 F.3d 553 (D.C. Cir. 1996)

3, 8, 17, 23, 25, 28

Brune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988)

Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728 (D.C. Cir. 2007)

Kissinger v. Reporters Committee For Freedom Of The Press,

445 U.S. 136 (1980)

31

11, 31

31

* Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993)

7, 9, 13, 16, 17, 20, 23-28

* Pacific Legal Foundation v. Council on Envtl. Quality., 636 F.2d 1259 (D.C. Cir. 1980)

7, 16

Roosevelt v. E.I. DuPont de Nemours & Co., 958 F.2d 416

(D.C. Cir. 1992)

:

* Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C. Cir. 1985)

31

16, 17

* Sierra Club v. Andros, 581 F.2d 895 (D.C. Cir.), rev’d on other grounds,

442 U.S. 347 (1978)

* Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971)

* Sweetland v. Walters, 60 F.3d 852 (D.C. Cir. 1995)

7, 17

3, 5, 6, 8, 9, 12, 13, 15, 16, 21, 23, 24, 28

5, 7-10, 13, 16, 17,24, 27, 34

*Authorities chiefly relied upon are marked with an asterisk.

111

Statutes:

3 u.s.c. §

105 (b)( 1 )

3

u.s.c. §

109

3

u.s.c. §

110

5 U.S.C. § 552

5 u.s.c. § 552(0

28

U.S.C. § 1291

28

U.S.C. § 1331

31

U.S.C. § 502

40

U.S.C.

§

301

40

U.S.C.

§

302

40

U.S.C.

§

501

40

U.S.C.

§

521

40

U.S.C.

§

541

40

U.S.C.

§

581

40

U.S.C.

§

3302

 

§

4342

§

6612

Regulations:

41C.F.R. Ch. 101

Rules:

Fed. R. App. P. 4(a)(1)

,

¯

27

27

27

1, 2

3

2

1

 

:

18

 

21

 

~

22

:

22

22

22

22

 

22

 

18

18

22

iv

2

Miscellaneous:

Executive Order 12028 § 2 Executive Order 12028 § 3(a) Executive Order 12028 § 4 Executive Order 12028 § 4(a) Executive Order 12028 § 4(d) Executive Order 12028 § 5 Executive Order 12122 § 4(d)

¯

H.R. Rep. No. 93-1380, at 14 (1974) H.R. Rep. No. 1635, 87 th Cong., 2d Sess. 9 (1962)

14, 26 19, 20, 26 15, 26

23

15, 16, 18

19

6

3

15

GLOSSARY

CEA

Council of Economic Advisers

CEQ

Council on Environmental Quality

EO

Executive Order

EOP

Executive Office of the President

FOIA

Freedom of Information Act

GSA

General Services Administration

NSC

National Security Council

OA

Office of Administration

OLC

Office of Legal Counsel

OMB

Office of Management and Budget

OST

Office of Science and Technology

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 08-5188

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff-Appellant,

V.

OFFICE OF ADMINISTRATION,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLEE

STATEMENT OF JURISDICTION

In this action under the Freedom of Information Act ("FOIA"), plaintiff

invoked the district court’s jurisdiction under 5 U.S.C. § 552 and 28 U.S.C.

§ 1331. See JA 14 (Complaint, ¶3). On June 16, 2008, the district court entered

final judgment, dismissing the case in its entirety. JA 322 (Order); JA 323-61

(Memorandum Opinion). Plaintiff filed a timely notice of appeal on the same

date. JA 362; see Fed. R. App. P. 4(a)(1).

This Court has appellate jurisdiction

under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUE

Whether the Office of Administration, a component of the Executive Office

of the President, is an "agency" within the meaning of the FOIA.

STATEMENT OF THE CASE

Plaintiff, Citizens for Responsibility and Ethics in Washington, brought this

FOIA action against the Office of Administration ("OA"), seeking disclosure of

specified records. The Office of Administration filed a motion to dismiss, arguing

that it was not an agency within the meaning of the FOIA. After allowing limited

jurisdictional discovery, the district court granted the Government’s motion, and

dismissed the case. JA 322-61. Plaintiff appeals.

STATEMENT OF FACTS

I. Statutory Background: The FOIA And Its Definition Of "Agency."

Subject to enumerated exceptions, the FOIA generally requires Government

agencies to make records publicly available upon request. See 5 U.S.C. § 552.

For purposes of the FOIA, the term "agency" is defined to "include[] any

executive department~ military department, Government corporation, Government

2

controlled corporation, or other establishment in the executive branch of the

Government (including the Executive Office of the President), or any independent

regulatory agency." 5 U.S.C. § 552(f).

In adopting the current definition of FOIA in 1974, Congress codified this

Court’s decision in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), which had

interpreted the previous definition to exclude parts of the Executive Office of the

President that served only to advise and assist the President and did not wield

°°substantial independent authority in the exercise of specific functions." Id. at

1073, 1075. See H.R. Rep. No. 93-1380, at 14 (1974); see also Armstrong v.

Exec. Office of the President, 90 F.3d 553,558 (D.C. Cir. 1996).

II. Prior Proceedings.

A. Plaintiff’s Complaint And The Government’s Motion For Judgment On The Pleadings.

The Office of Administration is a component of the Executive Office of the

President ("EOP"). Initially established by President Carter in 1977, OA provides

administrative support and services to units within EOP. JA 327-28.

In April 2007, plaintiff sent two FOIA requests to OA seeking records

relating to OA’s potential loss of email documents. The Office acknowledged

receipt of the FOIA requests, and granted plaintiff’s demand for expedited

processing. In May 2007, when there had not yet been any production of records,

plaintiff filed this action in district court, seeking an order compelling disclosure

of the requested materials, and interim injunctive relief. JA 325.

In June 2007, pursuant to a stipulated schedule, OA made its first response

to plaintiff’s FOIA requests, producing 50 pages of responsive documents and

withholding other potentially responsive records pursuant to underlying FOIA

exemptions. In conjunction with its response, OA also informed plaintiff that it

was not. an "agency." within the meaning of FOIA, but was nevertheless electing to

process plaintiff’s FOIA requests "as a matter of administrative discretion." JA

326. In a second response to plaintiff’s FOIA requests in August 2007, OA

advised that it had located and was withholding additional potentially responsive

documents, and reiterated that it was not an "agency" subject to FOIA. Ibid.

OA subsequently filed a motion for judgment on the pleadings, arguing that

it was entitled to judgment as a matter of law because it was not an agency as that

term is defined in the FOIA. Plaintiff opposed the motion, asserting among other

things that the question whether OA was a FOIA agency was jurisdictional, and

seeking jurisdictional discovery prior to judicial resolution of OA’s FOIA status.

See Plaintiff’s Opposition to Defendant’s Motion for Judgment on the Pleadings

(Sept. 4, 2007), at 20 & nn. 23, 24. The district court, in February 2008, denied

OA’s motion without prejudice, allowing the parties to conduct "very limited

discovery - which might be considered jurisdictional in nature." JA 326.

Pursuant to the court’s discovery orders, OA produced to plaintiff over

1,300 pages of documents, and plaintiff took the deposition of OA’s Director.

Ibid. OA also provided a declaration of its General Counsel, addressing OA’s

position regarding its FOIA status over time. JA 175,327.

B. OA’s Motion To Dismiss And The District Court’s Decision Granting That Motion.

After discovery, OA filed a motion to dismiss for lack of subject matter

jurisdiction, on the basis that it was not a FOIA "agency" and that the district court

therefore lacked jurisdiction over plaintiff’s FOIA action. After briefing by the

parties, the district court issued a memorandum opinion and order granting the

motion and dismissing the case. JA 322-61.

Noting that the FOIA’s definition of"agency" was intended to codify

S oucie, su_u_p_r~, the district court emphasized that "[f]ollowing Soucie’s lead,

’every one of the EOP units that [the D.C. Circuit has] found to be subject to FOIA

has wielded substantial authority independently of the President.’" JA 343

(quoting Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995)). After a

thorough review of the record, the court concluded that the "OA is not an agency

5

subject to the FOIA," because "OA lacks the type of substantial independent

authority that the D.C. Circuit has found indicative of agency status for other EOP

components when applying the Soucie criteria, and because the nature of OA’s

delegated authority is dissimilar to that of other EOP units that have been found to

be agencies subject to the FOIA." JA 342.

The court observed that, under Reorganization Plan No. 1 of 1977, which

created OA, and ensuing Executive Orders, OA is empowered to provide a broad

range of administrative services to EOP components, but is not invested with any

authority beyond providing such services within EOP. JA 348. Indeed, as the

district court pointed out, the applicable Executive Orders make explicit that OA’s

Director "shall not be accountable for the program and management

responsibilities of units within [EOP]: the head of each unit shall remain

responsible for those functions." Ibid. (quoting Executive Order 12122, § 4(d)).

The court considered the evidence of OA’s actual functions, acknowledging

that "[t]hese activities certainly demonstrate that OA has substantial operations, as

does the fact that OA employs over 200 individuals and is organized along seven

different organizational lines." JA 350-51. OA’s activities, however, including

contracting for supplies and services, do not demonstrate that it has any

"’substantial independent authority’ to direct executive branch officials,

6

~possess[es] any delegated regulatory authority to supervise agencies,’ or has the

~power to issue formal, legally authoritative commands to entities or persons

within or outside the executive branch.’" JA 351 (quoting Meyer v. Bush, 981

F.2d 1288, 1292, 1293, 1297 (D.C. Cir. 1993)).

The court contrasted the powers of the Office of Administration with those

of the Office of S~ience and Technology and the Council on Environmental

Quality, two EOP components that this Court has found to fall within the FOIA’s

definition of agency. "Significantly," the court stated, OA °"does not oversee and

coordinate federal programs, as does the Office of Science and Technology, or

promulgate binding regulations, as does the Council on Environmental Quality.’"

JA 351 (quoting Sweetland, 60 F.3d at 854); see also Pacific Legal Foundation v.

Council on Envtl. Quality., 636 F.2d 1259 (D.C. Cir. 1980) (concluding that CEQ

is a FOIA agency). "Nor does OA, like the Office of Management and Budget,

have statutory duties to report to Congress." JA 351 (citing Sierra Club v.

Andrus, 581 F.2d 895 (D.C. Cir. 1978), rev’d on other grounds, 442 U.S. 347

(1979)).

"Instead," the court stressed, "OA performs a variety of administrative

functions for EOP components, and the OA Director is specifically relieved of

substantive responsibility for those units." JA 351. Thus, while recognizing that

the specific context bearing upon an EOP component’s FOIA status will vary with

the entity at issue, the court indicated that this case was perhaps most comparable

to Sweetland, where this Court held that the Executive Residence was not a FOIA

agency, because the "staff of the Executive Residence exercises none of the

independent authority that we found to be critical in holding other entities that

serve the President to be agencies subject to FOIA." JA 345 (quoting Sweetland,

60 F.3d at 854); JA 346. For these reasons, "the [c]ourt conclude[d] that, because

OA serves only to assist and advise the President, and does not exercise

substantial independent authority, it is not an agency subject to the FOIA, pursuant

to the factors in Soucie." JA 352.

The district court noted that OA had previously considered itself to be

subject to the FOIA, but explained that the Office’s earlier view did not alter the

analysis. JA 356-58. As the court observed, this Court in Armstrong concluded

that the National Security Council ("NSC") was exempt from FOIA

notwithstanding that NSC had at times considered itself within FOIA, explaining

that "NSC’s prior references to itself as an agency are not probative on the

question before the court - whether the NSC is indeed an agencY within the

meaning of the FOIA." JA 356-57 (quoting Armstrong, 90 F.3d at 566).

Similarly, "OA’s own assessment of its legal status under the FOIA * * * is not

dispositive." JA 358.

SUMMARY OF ARGUMENT

As the district court explained, placement of an entity within the Executive

Office of the President does not take it outside the scope of the FOIA when such

an entity can "act directly and independently beyond advising and assisting the

President." Meyer, 981 F.2d at 1292 (citing Soucie, 448 F.2d at 1075). However,

"in cases involving units of the Executive Office that lacked substantial

independent authority, we have consistently rejected the claim that they were

subject to the FOIA." Sweetland, 60 F.3d at 854.

Applying these standards, the district court correctly concluded that the

Office of Administration is not an "agency" because it exercises no substantial

independent authority over matters of public or regulatory policy and has no

function beyond its mandate to provide administrative support to the President.

Unlike those EOP components that this Court has held are FOIA agencies, OA has

no authority to issue guidelines to federal agencies, to coordinate and evaluate

federal programs, to oversee activities of federal agencies, or to perform other

significant statutory duties.

9

The 1977 Message of the President transmitting the underlying

Reorganization Plan to Congress explained that the changes to EOP’s structure,

including the creation of OA, "are based on the premise that the EOP exists to

serve the President and should be structured to meet his needs." JA 81 (Message

of the President). The OA’s charter documents establish the Office as a

centralized administrative unit within the Executive Office of the President, .whose

Director is appointed by and answerable to the President. The Administrative

Office provides no services to other parts of the Executive Branch or to Congress,

and it cannot plausibly be thought to "wield[] substantial authority independently

of the President," Sweetland, 60 F.3d at 854, the hallmark of every unit of the EOP

that this Court has deemed a FOIA agency.

Plaintiff’s challenge to the district court’s ruling misapprehends the

governing analysis. As the district court recognized, it was required to determine

whether, regardless of its placement with the EOP, the Administrative Office

exercises substantial independent authority. Contrary to plaintiff’s understanding,

the OA’s ability to enter into contracts as a means of providing administrative

services within EOP does not constitute the type of substantial independent

authority discussed in this Court’s decisions. Nor, as the district court explained,

is it relevant that the OA serves the President by providing administrative services

10

generally within the EOP rather than directly and exclusively to the President

himself.

Plaintiff likewise errs in urging that it was entitled to additional discovery.

Plaintiff, in district court, argued that the court could not grant the government’s

motion for judgment on the pleadings because a component’s status as an

"agency" is jurisdictional. In response, the court permitted plaintiff limited

discovery on that question, including the deposition of the Director of the Office

of Administration. In a reversal of position, plaintiff now argues that the issue of

agency status was not jurisdictional, and that the court could not allow merely

"jurisdictional" discovery. Plaintiff has plainly waived that argument and, under

any standard, the discovery permitted by the district court would not constitute an

abuse of discretion.

STANDARD OF REVIEW

The district court’s determination that OA is not an "agency" with the

meaning of the FOIA presents a legal issue reviewable de novo. The court’s

discovery rulings are reviewed for abuse of discretion. See Islamic Am. Relief

Agency v. Gonzales, 477 F.3d 728, 737 (D.C. Cir. 2007).

11

ARGUMENT

THE EXECUTIVE OFFICE OF THE PRESIDENT’S OFFICE OF ADMINISTRATION IS NOT AN "AGENCY" WITHIN THE MEANING OF THE FOIA

A. OA Has No Substantial Independent Authority And Its Function Is To Advise And Assist The President.

1. In enacting the current definition of agency, Congress codified this

Court’s analysis in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), which, as

the district court noted, "interpreted the original definition of’agency’ under the

FOIA to include ’any administrative unit with substantial independent authority in

the exercise of specific functions,’ id. at 1073, and concluded that the

Office of Science and Technology was an agency because its ’sole function was

[not] to advise and assist the President,’ id. at 1075." See JA 339.

In concluding that the Office of Science and Technology was an agency,

notwithstanding its inclusion in the EOP, this Court in Soucie emphasized that the

OST had inherited its independent authority "from the National Science

Foundation, to which Congress had delegated ’some of its own broad power of

inquiry,’ and tha t[w]hen the responsibility for program evaluation was

transferred to the OST, both the executive branch and members of Congress

contemplated that Congress would retain control over information on federal

12

programs accumulated by the OST, despite any confidential relation between the

Director of the OST and the President.’" JA 343 (quoting Soucie, 448 F.2d at

1075). As this Court observed in Sweetland v. Walters, 60 F.3d 852 (D.C. Cir.

1995), OST "was subject to FOIA because it had independent authority to evaluate

federal scientific programs, initiate and support research, and award scholarships."

Id. at 854 (citing Soucie, 448 F.2d at 1075); see also Meyer v. Bush, 981 F.2d at

1292 ("Although we acknowledged that OST advised and assisted the President,

we emphasized that OST also had inherited from the National Science Foundation

’substantial independent authority,’ such as evaluating federal programs, initiating

and supporting research, and awarding scholarships.").

2. As these decisions make clear, an entity wielding substantial independent

authority may be an agency for purposes of FOIA notwithstanding its placement in

the EOP. "By contrast, in cases involving units of the Executive Office that

lacked substantial independent authority, we have consistently rejected the claim

that they were subject to the FOIA." Sweetland, 60 F.3d at 854. OA wields no

such authority.

That OA exists to provide administrative support and assistance to the

President, and has no substantial independent authority, is plain from OA’s charter

documents. Reorganization Plan No. 1 of 1977, issued by President Carter,

13

"established in the Executive Office of the President the Office of Administration

which shall be headed by the President." JA 79 (Reorg. Plan No. 1 of 1977, §2).

The Reorganization Plan declared: "The Office Of Administration shall provide

components of the Executive Office of the President with such administrative

services as the President shall from time to time direct." Ibid. The Director of the

Office of Administration, who is appointed by the President, serves "as chief

administrative officer of the Office of Administration." Ibid.

The Message of the President transmitting the Reorganization Plan to

Congress explained that the changes to EOP’s structure, including the creation of

OA, "are based on the premise that the EOP exists to serve the President and

should be structured to meet his needs." JA 81 (Message of the President). The

Message explained that "[t]he EOP has never before been organized as a single,

unified entity serving the President," and that OA, as a new, centralized

administrative unit, would be "[a] base for an effective EOP budget/planning

system through which the President can manage an integrated EOP." JA 86

(Message of the President).

Executive Order 12028, also issued in 1977, effectuated OA’s

establishment, providing that OA’s Director "shall report to the President" (EO

12028, §2); "shall be responsible for ensuring that [OA] provides units within

14

[EOP] common administrative support and services" (ibid.); and, "[s]ubject to

such direction or approval as the President may provide or require, shall (1)

organize [OA], (2) employ personnel, (3) contract for supplies or services, and (4)

do all other things that the President, as head of [OA], might do." (id., §4). As

amended by Executive Order 12122 in 1979, EO 12028 specifies, however, that

OA’s "Director shall not be accountable for the program and management

responsibilities of units within [EOP]; the head of each unit shall remain

responsible for those functions." EO 12028, §4(d), as amended by EO 12122.

The contrast with the creation of the OST, discussed in Soucie., is evident.

This Court emphasized the understanding of the House Committee on Government

Operations that establishment of OST would facilitate the transmission of

information to Congress. The Committee declared that "[w]ith the creation of the

new office the Director will become available to Congress and provide us with

more information than we now obtain." Soucie, 448 F.2d at 1075 (quoting H.R.

Rep. No.1635, 87th Cong., 2d Sess. 9 (1962)).

The Office of Administration provides no analogous assistance to any part

of the Government outside of the EOP. Nor does OA have any substantive

authority over any component within EOP. As noted, OA’s "Director shall not be

accountable for the program and management responsibilities of units within

15

[EOP]; the head of each unit shall remain responsible for those functions." EO

12028, §4(d).

As the district court recognized, this Court has never held a part of the EOP

to constitute an agency absent such Substantial independent authority. JA 343; see

Sweetland, 60 F.3d at 854 ("[E]very one of the EOP units that [the D.C. Circuit

has] found to be subject to FOIA has wielded substantial authority independently

of the President.") (citing ~, 981 F.2d at 1292). As noted, the Office of

Science and Technology was held to be a FOIA agency because it had "the

independent function of evaluating federal [scientific] programs." Soucie, 448

F.2d at 1075. The Council on Environmental Quality was deemed a FOIA agency

because various Executive Orders have authorized it to "issue guidelines to federal

agencies," "coordinate federal programs related to environmental quality," "issue

regulations to federal agencies for implementing all of the procedural provisions

of [the National Environmental Policy Act]," and oversee certain activities of

other federal agencies. JA 343; Pacific Legal Foundation v. Council on Envtl.

Quality., 636 F.2d 1259, 1262 (D.C. Cir. 1980); see Rushforth v. Council of

Economic Advisers, 762 F.2d 1038, 1041 (D.C. Cir. 1985). Similarly, the Office

of Management and Budget is subject to the FOIA’s disclosure requirements

because it has the authority to "assemble, correlate, revise, reduce, or increase the

16

requests for appropriations of the several departments or establishments," and "in

addition to its multitudinous other management, coordination, and administrative

functions," it "has a statutory duty [to Congress] to prepare the Budget." Sierra

Club v. Andrus, 581 F.2d 895,902 & n.25 (D.C. Cir. 1978)

By the same token, the absence of substantial independent authority has

signaled that. a component of the EOP is not an agency under the FOIA. Thus, the

Council of Economic Advisers is not a FOIA agency because it does "not possess

any delegated regulatory authority to supervise agencies," Meyer, 981 F.2d at

1293, and has "no []power to issue formal legally authoritative commands to

entities or persons within or without the executive branch," id. at 1292; see

Rushforth, 762 F.2d at 1043. Likewise, the National Security Council is not a

FOIA agency because it does not exercise "meaningful non-advisory authority" in

coordinating the activities of the various agencies with national security

responsibilities. Armstrong, 90 F.3d at 565. And, the Executive Residence is

exempt from FOIA because it is exclusively dedicated to assisting the President in

maintaining his home and carrying out his various ceremonial duties, and "does

not oversee and coordinate federal programs * * * or promulgate binding

regulations." Sweetland, 60 F.3d at 854.

17

The Office of Administration, like the CEA, the NSC, and the Executive

Residence, does not direct or supervise components of the Executive Branch and

does not exercise "substantial independent authority" over regulatory and/or

public policy matters. And, unlike the heads of OST, CEQ, and OMB, the

President’s appointment of the OA Director is not subject to Senate confirmation.

See 31 U.S.C. § 502 (OMB); 42 U.S.C. §§ 4342 (CEQ), 6612 (OST). Instead,

much like the Executive Residence, which supports the President by maintaining

his home and assisting him in his ceremonial duties, OA supports the President by

performing purely administrative functions for EOP

Like the Executive

Residence’s non-substantive, supporting role, OA similarly is "not accountable for

the program and management responsibilities" of the EOP units it supports. EO

12028, §4(d) (as amended).

B. Plaintiff Demonstrates No Relevant Similarities Between The Administrative Office And Any Component Of The EOP That This Court Has Deemed A FOIA Agency.

1. Plaintiff fails entirely to demonstrate any material similarities between

the Administrative Office and those components of the EOP that this Court has

previously held to be FOIA agencies. Although plaintiff baldly asserts that "OA is

an agency because its does not advise and assist the President," Appellant’s Br. at

18

27, it cannot demonstrate that OA possesses relevant authority with regard to any

other part of the Executive Branch. Plaintiff’s argument, instead, is that the OA

does not provide services directly to the President but performs its work for the

EOP generally. See EO 12028, §3(a) (OA provides common administrative

support and services to EOP components "except for such services provided

primarily in direct support of the President" ); see also id. §5.

This argument fundamentally misunderstands the relevant analysis. As the

district court noted, while plaintiff"is correct that OA’s charter documents do not

generally authorize OA to provide administrative services in direct support of the

President," "this distinction does not establish that OA performs functions beyond

advising and assisting the President." JA 348. "Instead, OA’s charter documents

and President Carter’s message to Congress make clear that OA’s function is to

support, i.e., assist, the President indirectly by providing efficient, centralized

administrative services to the components within EOP." Ibid. (emphasis in

original).

Whether or not OA provides the full complement of administrative services

to the White House Office that it provides to other EO components is beside the

point. OA is a Presidential creation established to combine administrative support

operations into a central unit within EOP so that EOP can better serve the

19

President’s needs. JA 81, 86 (Message of the President). As OA has explained to

Congress, OA’s mission is to provide the necessary administrative support "so that

policy-making staff elsewhere in the EOP can focus on national policy decisions

without having the distractions caused by routine administrative services." JA 67

(Executive Office of the President, Office of Administration, Fiscal Year 2006

Budget).

Moreover, as the district court also emphasized (JA 348), EO 12028

specifically authorizes OA to provide direct support to the President upon the

request of White House Office: "The Office of Administration shall, upon

request, assist the White House Office in performing its role of providing those

administrative services which are primarily in direct support of the President." EO

12028, §3(a). And, OA has, in fact, provided such direct support. See JA 348-49

(citing examples).

As the district court recognized, the issue in determining the status of an

EOP component is not how directly it provides services to the President but the

extent to which it provides services to Congress and exercises authority over other

parts of the Executive Branch. Thus, as this Court observed in Meyer, the Office

of Science and Technology "was a FOIA agency precisely because it could act

directly and independently beyond advising and assisting the President." Mez~,

20

981 F.2d at 1292; see Soucie, 448 F.2d at 1075 ("By virtue of its independent

function of evaluating federal programs, the OST must be regarded as an agency

subject to the Freedom of Information Act."). In contrast, the OA provides

services to the President, directly and indirectly, within the EOP.

Plaintiff mistakenly asserts that, under the district court’s reasoning, "the

entirety of the executive branch could be deemed a non-agency, as every agency at

least indirectly assists the President in carrying out his agenda." Appellant’s Br.

18. This assertion underscores the extent to which plaintiff fails to come to grips

with the relevant inquiry. The Soucie test concerns the relative roles of offices

within the EOP. If such offices provide services only within the EOP and exercise

no substantial independent authority, tl-iey do not fall within the FOIA. That

analysis has no applicability to agency employees who, by definition, assist an

agency in the performance of its duties.

The full extent of plaintiff’s mistaken analysis is demonstrated by its

contention that, that under the district court’s reasoning, the General Services

Administration ("GSA") would not be a FOIA agency because it provides services

that might ultimately be characterized administrative in nature. Appellant’s Br.

30. Plaintiff fails to note the obvious-unlike OA, GSA was established by

Congress, as an "agency in the executive branch," 40 U.S.C. § 301, and, by statute,

21

the head of GSA is appointed by the President with the advice and consent of the

Senate, 40 U.S.C. § 302. GSA also possesses its own substantive authority with

respect to federal agencies and third parties, including congressionally delegated

authority to promulgate binding regulations. See, e , 40 U.S.C. §§ 501,521,

541,581, 3302; 41 C.F.R. Ch. 101.

As the district court noted (JA 350-51), plaintiff mistakenly seeks to

establish substantial independent authority by noting that OA can enter into

contracts for supplies and services, including agreements with federal agencies.

As the court explained, however, the.cited contracts are~ simply examples of

administrative services performed for the EOP. They concern matters such as

arrangements for financial management services, the reimbursement of expenses

incurred by the President’s attendance at events sponsored by a federal agency,

and the provision of limited administrative services (e , phone services) for

f~deral entities present on the White House complex for purposes of supporting

EOP. See JA 330-32; Appellant’s Br. 9. For example, OA has an agreement with

the Department of the Navy, pursuant to which the Navy pays OA for AT&T voice

systems operation and maintenance, because the Navy operates the White House

Mess executive dining rooms located on the White House complex. See JA 332.

22

If OA couid not enter into these types of contracts, it would be poorly

placed to perform its role of providing administrative support and services within

EOP. Indeed, as noted above, OA’s charter documents specifically provide that

"[s]ubject to such direction or approval as the President may provide or require,

the Director [of OA] shall * *

§4(a).

* contract for supplies or services." EO 12028,

2. Plaintiff’s analysis of Meyer v. Bush, Appellant’s Br. 28-31, is similarly

wide of the mark. This Court in Meyer articulated a three-part formulation for

"appl[ying] Soucie" and °°determining whether those who both advise the

President and supervise others in the executive branch exercise ~substantial

independent authority’ and hence should be deemed an agency subject to the

FOIA." Armstrong, 90 F.3d at 558; see Me_M

e_y~,

981 F.2d at 1293. The Court in

that case ultimately determined that President Reagan’s Task Force on Regulatory

Relief"was not a body with °substantial independent authority’ to direct executive

branch officials. The various cabinet members of the Task Force were

unquestionably officers who wielded great authority as heads of their departments.

But there is no indication that when acting as the Task Force they were to exercise

substantial independent authority, nor in fact, did they do so." Id. at 1298.

23

As the district court noted, the question confronted by ~ in analyzing a

federal task force composed in part of agency heads is not presented here. See JA

341-42. Similarly, this Court did not apply the three-part test in Sweetland, a case

decided after Me2_~, in determining that the staff of the Executive Residence was

not subject to FOIA because "[t]he staff does not oversee and coordinate federal

programs * * * or promulgate binding regulations." Sweetland, 60 F.3d at 854.

As the district court also explained, ~’s three-part test for applying the

Soucie standards to the problems posed by an inter-agency task force did not

supplant the analysis generally applicable in determining the status of an EOP

component. Thus, just as OA is not an "agency" under Soucie itself, it is also not

an "agency" under Me2~er’s elaboration of Soucie. See JA 342 ("Ultimately, the

court concludes that OA is not an agency subject to the FOIA under either rubric,

because OA lacks the type of substantial independent authority that the D.C.

Circuit has found indicative of agency status for other EOP components when

applying the Soucie criteria, and because the nature of OA’s delegated authority is

dissimilar to that of other EOP units that have been found to be agencies subject to

the FOIA.").

Application of the three considerations set out in ~ demonstrates that

plaintiff’s argument fails on any terms. In Me2_~, the Court considered whether

24

an entity (1) has "a self-contained structure;" (2) "how close operationally" the

entity is to the President, and (3) "the nature of its delegation from the President."

_M

e_y_~,

981 F.2d at t 293. These "three factors are not necessarily to be weighed

equally; rather, each factor warrants consideration insofar as it is illuminating in

the particular case." Armstrong, 90 F.3d at 558.

There is no question that OA has "a self-contained structure." Mey_~, 981

F.2d at 1293. OA maintains a staff of about 200 employees and is organized along

the lines of seven offices, with each office having its own defined functions. See

JA 330; JA 221 (Executive Office of the President, Office of Administration,

Fiscal Year 2009 Budget). As this Court has explained, however, "while a definite

structure may be a prerequisite to qualify as an establishment within the executive

branch * * * not every establishment is an agency under the FOIA." Armstrong,

90 F.3d at 558 (internal quotations and citations omitted). Even when an office

"has a structure sufficiently self-contained that the entity could exercise

substantial independent authority, * * * [t]he remaining question is whether the

[entity] does" possess such authority. Id. at 560. Thus, for example, while this

Court determined that the NSC has a self-contained structure, it nevertheless

concluded that NSC does not have substantial independent author.ity so as to

qualify as an "agency" under FOIA. See id. at 560, 565.

25

The district court found that the second Meyer factor, OA’s operational

proximity to the President, placed weight on both sides of the scale. JA 354. On

the one hand, recognizing that OA is "headed by the President" (JA 79 (Reorg.

Plan No. 1 of 1977, §2)) and that OA’s Director "report[s] to the President" and is

"subject to such direction and approval as the President may provide or require"

(EO 12028, §§2, 4), the court concluded that "OA is organizationally close the

President." JA 354. This conclusion militates in favor of exclusion of OA from

the FOIA. On the other hand, the court stated, OA "appears to lack the same type

of operational proximity to the President" as certain other EOP components, such

as the National Security Council. Ibid.

The district court found most relevant in this context the third factor in the

Meyer analysis, the nature of OA’s delegated authority. JA 354-55. As the court

reiterated, far from wielding any substantial independent authority, OA’s only

delegated authority is to provide administrative support and assistance within

EOP, including direct support to the President. See JA 79 (Reorg. Plan No. 1 of

1977, §2); EO 12028, §§ 2, 3(a). Indeed, even the performance of its purely

administrative functions is subject to Presidential approval. See EO 12028, §§ 2,

4. Like the staff of the Executive Residence, the district court pointed out, OA has

no program or policy responsibilities, nor does it have any power to issue formal,

26

legally authoritative commands to entities or persons outside EOP. OA exists

solely to advise and-assist the President on administrative matters internal to EOP,

and, under settled principles, OA does not meet FOIA’s definition of "agency."

See JA 355-56. ~

Contrary to plaintiff’s thesis, this analysis attaches no disproportionate

significance to one of the three criteria noted in Meyer. See Appellant’s Br. 28-

31. Those factors, which were developed to assess the status of an inter-agency

task force, are a means for determining the issue of whether a body exercises

substantial independent authority, and they are useful only insofar as they

illuminate that issue in a particular case. In any event, the district court

exhaustively reviewed all possible questions suggested by ~ (JA 352-56), and

concluded that "the nature of OA’s delegated authority is entirely dissimilar to that

~ In concluding that the Executive Residence is not a FOIA agency, this Court in Sweetland noted that, "[e]ven though [applicable statutes] impose relatively specific obligations on Residence staff with respect to the public property and furniture in the White House, they also indicate that these duties must be carried out ’under the direction of the President,’ 3 U.S.C. § 109, or ’with the approval of the President.’ 3 U.S.C. § 110." Sweetland, 60 F.3d at 855. This Court added that, "[c]ontrary to [plaintiff’s] assertions, these provisions do not empower the Executive Residence staff to manage the President’s home without regard to the President’s wishes[,] [n]or are they inconsistent with section 105(b)(1)’s general command that such employees ’shall perform such official duties as the President may prescribe.’ 3 U.S.C. § 105(b)(1)." Ibid. To the extent plaintiff here seeks to resuscitate analogous arguments (see Appellant’s Br. 16- 17), Svceetland mandates their rejection. See JA 345.

27

of the other EOP components that the D.C. Circuit has found to be agencies

subject to the FOIA." JA 355. Having determined that OA is not an agency under

Soucie, the district court properly rejected plaintiff’s contention that a different

result was mandated by Me_M

~.

See JA 352 ("The court is compelled to reach the

same conclusion - that OA is not an agency subject to the FOIA - when it applies

the three-factor test set forth in Me2_e£.").

3. Plaintiff insists that OA should nevertheless be deemed a FOIA agency

because it previously considered itself to be one. See Appellant’s Br. 22-24. As

the district court noted, this Court faced a similar issue in Armstrong, in holding

that the National Security Council is not a FOIA agency notwithstanding that, on

prior occasions, NSC had held itself out as subject to the FOIA. As this Court

explained, "NSC’s prior references to itself as an agency are not probative on the

question before the Court - whether the NSC is indeed an agency within the

meaning of FOIA." Armstrong, 90 F.3d at 566. This Court recognized that,

"quite simply, the Government’s position on that question has changed over the

years," and an entity’s earlier stance that it was covered by FOIA (and the Federal

Records Act) "should not be taken to establish as a matter of law that [it] is subject

to those statutes." Ibid.

28

As OA’s General Counsel explained in a declaration in the record (JA 175-

79), "the issue of whether OA meets the FOIA definition of ’agency’ first surfaced

soon after the district court’s decision in Armstrong v. EOP, 877 F. Supp. 690

(D.D.C. 1995)." JA 176-77 (Medaglia Decl’n, ¶5). "Since that time, whether OA

met the FOIA definition of an agency was from time to time a subject of

discussion between and among the Department of Justice, OA, and the White

House Counsel’s Office." Ibid.

The-record explains further that, in 2006, "the White House Counsel’s

Office requested the legal advice of the Office of Legal Counsel (’OLC’) of the

Department of Justice regarding OA’s status under FOIA." JA 177 (Medaglia

Decl’n, ¶6). "On several occasions during this deliberative process, although not

consistently, OA included language in its FOIA responses advising the requesters

that OA was processing their requests as a matter of administrative discretion."

JA 177 (Medaglia Decl’n, ¶7). The final decision that OA is not subject to FOIA

was made in August 2007, "after OA and the White House Counsel’s Office

received [an] OLC[] memorandum formally memorializing its legal advice." JA

177 (Medaglia Decl’n, ¶8). 2

2 As OA’s General Counsel noted as well, "the decision that OA is not subject to the FOIA is also a decision that OA is subject to the PRA [Presidential Records Act], and not the FRA [Federal Records Act]." JA 178 (Medaglia Decl’n,

29

Against this backdrop, the district court properly recognized that the

Government’s position had evolved over time, but that its change in position was

not dispositive for purposes of determining OA’s FOIA status. Especially "[i]n

light of the similarities between this case and Armstrong," JA 357, the court

committed no error in concluding that "while OA’s past functioning under the

FOIA" is undisputed, "it is also insufficient by itself to establish that OA is, as a

matter of law, an agency subject to the FOIA." JA 358.

4. Finally, plaintiff contends that the district court should have permitted

further discovery, and unduly limited discovery because it treated as jurisdictional

the question whether OA is an "agency" under FOIA. See Appellant’s Br. 31, 35.

Plaintiffs cannot properly challenge the district court’s characterization of

the discovery as directed to a jurisdictional question. In its district court

pleadings, plaintiff itself characterized the "agency" question as jurisdictional.

Indeed, when OA initially filed a motion for judgment on the pleadings, plaintiff

opposed the motion, arguing among other things that whether OA was an agency

under FOIA was jurisdictional in nature, and that jurisdictional discovery was

called for prior to any judicial determination that OA fell outside FOIA. See

¶11). Thus, "[o]nce the final decision was reached that OA is not subject to, and will no longer comply with, FOIA, OA began implementing its PRA status." JA 178 (Medaglia Decl’n, ¶12).

30

Plaintiff’s Opposition to Defendant’s Motion for Judgment on the Pleadings (Sept.

4, 2007), at 20 & nn. 23, 24 (citing Kissinger v. Reporters Committee For

Freedom Of The Press., 445 U.S. 136 (1980)). 3 Having taken the position in the

district court that the agency question was jurisdictional, and having, in addition,

successfully obtained jurisdictional discovery on that basis, plaintiff has waived

the ability to take a contrary position in this Court. See generally Roosevelt v. E.I.

DuPont de Nemours & Co

,

958 F.2d 416, 419 & n.5 (D.C. Cir. 1992) ("it is not

our practice to entertain issues first raised .on appeal").

In any event, plaintiff demonstrates no abuse of discretion in the district

court’S discovery limitations. See Islamic Am. Relief Agency v. Gonzales, 477

F.3d 728,737 (D.C. Cir. 2007) ("The district court has broad discretion in its

handling of discovery, and its decision to allow or deny discovery is reviewable

only for abuse of discretion.") (quoting Brune v. IRS., 861 F.2d 1284, 1288 (D.C.

Cir. 1988)). As the court explained in setting out the scope of discovery,

plaintiff’s discovery requests encompassed a range of issues that were cumulative,

not in dispute, and already addressed by the record. See JA 107-08, 137-38. For

3 Similarly, when plaintiff opposed OA’s motion to dismiss for lack of subject matter jurisdiction, plaintiff nowhere suggested that the issue before the court was not jurisdictional. See Plaintiff’s Opposition To Defendant’s Motion To Dismiss For Lack Of Subject Matter Jurisdiction (May 9, 2008).

31

example, while plaintiff suggests that the district court permitted insufficient

discovery regarding "services OA provides within the EOP" (Appellant’s Br. 39),

the record c~ntains evidence on that topic, see JA 283-84 (financial management

services); JA 293-94 (procurement agreements); JA 302 (common support to EOP

components), and, as the district court observed, "there is no dispute that OA

provides extensive administrative services to all EOP components." JA 137

(Discovery Order). If, after obtaining discovery, plaintiff believed that discovery

restrictions had materially undermined its ability to respond to the government’s

dispositive motion, it was incumbent upon it to make that argument to the district

court. It did not. See Plaintiff’s Opposition To Defendant’s Motion To Dismiss

For Lack Of Subject Matter Jurisdiction (May 9, 2008).

That plaintiff made no sucl-i argument is unsurprising. The issue on which

the court permitted discovery was, however characterized, the dispositive issue

before the court. Pursuant to the court’s discovery orders, OA turned over 1,300

pages of documents in response to plaintiff’ s requests for document production.

JA 327. Plaintiff also sought and obtained the deposition of OA’s Director, Alan

R. Swendiman. See JA 138 (Discovery Order). In his deposition, Mr. Swendiman

testified concerning OA’s role and organization, the role and status of OA’s

Director, and the relationship between OA and various entities within and outside

EOP. See JA 277-306 (Swendiman Deposition). Mr. Swendiman also noted that,

as Director of the Office of Administration, he held the title of Special Assistant to

the President, and he reported to the President through the Deputy Assistant to the

President for Management and Administration. See JA 278-79 (Swendiman

Deposition).

In complaining that Mr. Swendiman did not fully answer every question to

its satisfaction, plaintiff misses the more fundamental point that a judicial order

mandating the deposition of OA’s Director does not reflect an overly narrow

discovery process. And, while plaintiff suggests that it should have been able to

depose other OA personnel (Appellant’s Br. 36-37), its brief specifies no

particular official who might have been able to provide additional, relevant

information. 4

Moreover, in conjunction with the requested jurisdictional discovery, the

district court also required OA to provide a declaration of its General Counsel, M.

Elizabeth Medaglia. See JA 175 (Medaglia Declaration). In her declaration, Ms.

Medaglia explicitly addressed various legal questions pertaining to OA’s position

4 In district court, plaintiff asked to depose four particular OA employees:

OA’s Director, Chief Operating Officer, Chief Information Officer, and its prior FOIA officer. JA 138. OA’s objections and the district court’s discovery orders explained why deposition of these multiple OA staff members was not warranted. See JA 119-23,138.

33

regarding its FOIA status over time. See JA 175-79. That OA was required to

provide a declaration of its General Counsel, over and above the deposition of its

Director, further refutes plaintiff’s contention that the discovery it obtained was

unduly restrictive in scope.

The record shows that plaintiff was able to obtain discovery relating to, inter

alia, OA’s general procurement activities (see JA 296), its agreements with federal

agencies for the provision of specific services (see JA 298), and the OA Director’s

requests to various agencies for non-reimbursable details of qualified individuals

(see JA 295). As the Government urged in the district court, 5 no discovery of any

kind was needed in order to resolve the question presented, whether OA is an

"agency" within the meaning of FOIA. See, e

g~.,

Sweetland, 60 F.3d at 853

(affirming district court judgment, at motion to dismiss stage, that Executive

Residence is not a FOIA °°agency"). The district court nevertheless afforded

plaintiff ample discovery on the issue in question. Plaintiff waived its challenge to

5 See Defendant’s Memorandum In Support Of Its Motion For Judgment On The Pleadings (Aug. 21, 2007); Defendant’s Memorandum In Support Of Its Motion To Dismiss For Lack Of Subject Matter Jurisdiction, at 9 n.3 (Apr. 25, 2008) ("Although OA continues to believe under D.C. Circuit precedent that the issue of its °agency’ status under FOIA can be decided on the pleadings alone, * * * OA will cite to factual evidence developed during discovery as further support that OA is not a FOIA agency as a matter of law.").

34

the scope of that discovery, and the discovery rulings would not, in any event,

.constitute an abuse of discretion.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be

affirmed.

SEPTEMBER 2008

Respectfully submitted,

GREGORY G. KATSAS Assistant Attorney General

JEFFREY A. TAYLOR United States Attorney

MARK B. STERN

(202)514-5089

THOMAS M. BONDY

~

(202)514-4825

Attorneys, Appellate Staff Civil Division, Room 7535 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

35

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief is in compliance with Rule 32(a)(7) of the

Federal Rules of.Appellate Procedure. The brief contains 7439 words, and was

prepared in 14-point Times New Roman font using Corel WordPerfect 12.0.

THOMAS M. BONDY Attorney for Appellee

(202)514-4825

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of September, 2008, I served the

foregoing Brief for Appellee by causing one original and 15 copies to be delivered

by hand to the United States Court of Appeals for the District of Columbia Circuit,

and two copies to be delivered by first-class U.S. Mail, postage prepaid, to the

following counsel:

Anne L. Weismann Melanie T. Sloan Citizens for Responsibility and Ethics in Washington 1400 Eye Street, N.W., Suite 450 Washington, D.C. 20005 Telephone: (202)408-5565

THOMAS M. BONDY

Attorney for Appellee

(202)514-4825