Better Government Association v. Department of State

Nos. 84-5723; -5928 (D.C. Cir. January 3, 1986)

ELR Digest

The court holds that challenges to the facial validity of Department of Justice (DOJ) guidelines for acting on requests for fee waivers under the Freedom of Information Act (FOIA) are not mooted by agencies' reversal of decisions not to grant specific waivers, and the challenges are ripe for review. The Better Government Association (BGA) and National Wildlife Federation (NWF) had filed FOIA requests with, respectively, the Department of State and Bureau of Land Management. Both groups had sought public interest fee waivers under § 552(a)(4)(A) of FOIA; both requests were denied; and both agencies relied on a 1983 DOJ memorandum listing criteria for acting on public interest fee waiver requests. Although both agencies had promulgated FOIA regulations governing fee waivers, they had used the DOJ guidelines in reviewing the BGA and NWF requests and said they would continue to use them. BGA and NWF filed suits in district courts, but the agencies subsequently reversed their decisions on the fee waivers and returned fees paid. The district courts held that these actions mooted the challenges.

The court first holds that the challenges are not moot, although the challenges to the application of the DOJ guidelines to appellants' specific fee requests are moot. In a footnote, the court rejects appellants' argument that the voluntary-cessation-of-illegal-activity exception precludes a finding of mootness. That exception is appliable only where the illegal activity may be renewed; the agencies' decision on the specific fee waivers is final. The court rules, however, that the challenge to the facial validity of the DOJ guidelines is not moot. Appellants frequently request documents under FOIA and the agencies indicate that they will continue to rely on the guidelines. The real question is not whether this challenge is moot, but whether it is ripe.

The court holds that appellants' claims that the DOJ guidelines violate FOIA and the Administrative Procedure Act (APA) are ripe for review. The court rules that the issues are fit for review because they raise legal questions only and would not be easier to resolve within a specific factual context. It then rules that neither the agencies nor the court would benefit by waiting for further application of the guidelines, since the guidelines are not scheduled for revision and both agencies state that they will continue to adhere to them. Appellees' characterization of the guidelines as informal is not definitive, since they applied them as final. Finally, the court rules that the continued application of the guidelines creates hardship for appellants. FOIA requests are critical to the organizations' effectiveness in their primary functions and they feel the impact immediately. Congress expressly added the fee waiver provision to encourage public interest organizations like appellants to use FOIA; the guidelines discourage that use. Without ruling on the merits of appellants' claims that the DOJ guidelines deprive them of a statutory right of free use of FOIA, the court notes that their claims further indicate the gravity of the hardship inflicted by the allegedly illegal guidelines.

Finally, the court outlines the issues the district court should resolve on remand: whether the guidelines violate FOIA, whether the agencies should have promulgated the guidelines under the notice and comment procedures of the APA, and whether FOIA requires formal adoption of fee waiver criteria.

A concurring judge would remand based solely on the voluntary-cessation-of-illegal-activity exception to the mootness doctrine.

Counsel for Appellant
Cornish F. Hitchcock, Eric R. Glitzenstein, Alan B. Morrison
Public Citizen Litigation Group
2000 P St. NW, Washington DC 20036
(202) 785-3704

John Bonine, Michael Axline
Pacific Northwest Resources Clinic
University of Oregon Law Center, Eugene OR 94703
(503) 686-3823

Counsel for Appellees
Deborah Ruth Kant, Leonard Schaitman
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3469

Edwards, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]