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Media Alerts - Main Street Legal Services v. National Security - Second Circuit
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January 27, 2016
  Main Street Legal Services v. National Security - Second Circuit
Headline: Second Circuit Holds National Security Council Is Not an "Agency" and Thus Not Subject Freedom of Information Act Disclosure Requirements.

Areas of Law: Freedom of Information Act; Administrative Law

Issue(s) Presented: Whether the National Security Council ("NSC") is an "agency" for Freedom of Information Act purposes under 5 U.S.C. § 552(f)(1), either due to its own function or due to the functions of the broader NSC System.

Brief Summary:
Plaintiffs-Appellants, a non-profit law firm within the City University of New York School of Law, brought suit against Defendant-Appellee, the National Security Council (the "NSC") following the NSC's rejection of Plaintiffs-Appellants' Freedom of Information Act ("FOIA") requests. Plaintiffs-Appellants had requested "[a]ll records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals," and "[a]ll National Security Council meeting minutes taken in the year 2011." The NSC moved to dismiss the complaint for failure to state a claim on the grounds that it is not an agency subject to FOIA requests.

The United States District Court for the Eastern District of New York agreed with the NSC and dismissed the case on the merits. The Second Circuit affirmed, holding that the NSC, created by Congress and presided over by the President, "is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive." The Second Circuit adopted D.C. Circuit jurisprudence and predicated its holding upon the functions of both the Council and the NSC System, which it held were advisory only and entailed no authority independent of the President.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...d4993/1/hilite/


Extended Summary: Plaintiffs-Appellants brought suit against Defendant-Appellee, the National Security Council (the "NSC"), following the NSC's rejection of Plaintiffs-Appellants' Freedom of Information Act ("FOIA") requests. FOIA "establishes record retention and disclosure requirements for federal agencies" and mandates that, barring certain exemptions, agencies disclose records not already publically available upon request. Plaintiffs-Appellants had moved to compel the NSC to disclose "[a]ll records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals," and "[a]ll National Security Council meeting minutes taken in the year 2011." The NSC moved to dismiss the complaint for failure to state a claim on the grounds that it is not an agency subject to FOIA requests.

The United States District Court for the Eastern District of New York agreed with the NSC and dismissed the case on the merits. The Second Circuit affirmed, holding that the NSC, created by Congress and presided over by the President, "is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive." The Second Circuit adopted D.C. Circuit jurisprudence and predicated its holding upon the functions of both the Council and the broader NSC System, which it held were advisory only and entailed no authority independent of the President.

In affirming the district court's ruling, the Second Circuit first noted that the FOIA's plain language defining "agency" as any "other establishment in the executive branch of the Government (including the Executive Office of the President)" under 5 U.S.C. § 552(f)(1) had not been strictly construed by the Supreme Court. It then relied upon FOIA's legislative history and the two-prong test enumerated by the Court of Appeals for the District of Columbia (the "D.C. Circuit") in Soucie v. David. Soucie construed the "agency" definition to apply to executive branch entities with "substantial independent authority," but not to those whose "sole function" is to "advise and assist the President."

The Second Circuit noted that the D.C. Circuit, which frequently hears appeals from FOIA request denials, had held on more than one occasion that NSC is not an "agency." The Court went on to accept guidance from the D.C. Circuit's decision in Meyer v. Bush, when that circuit concluded the NSC was not an agency, but conducted its own thorough analysis of the functions of the NSC and the broader NSC System - which includes staff and subcommittees and boards - before concluding that the NSC's sole statutory function is to advise and assist the President and has no independent authority conferred upon it.

In rejecting a series of specific arguments raised by the Plaintiffs to demonstrate NSC's alleged independent authority, the Court noted that, although the NSC formerly directed the Central Intelligence Agency, Congress partially withdrew that authority in 1992, and withdrew the rest of that authority in 2004. The Court also found legislative support for its position that the core function of the broader NSC System was to assist the President through "coordination," by serving as "the means by which the President can secure both the collective national security recommendations of department heads and their cooperation in integrating his policies across various parts of government."

Judge Wesley concurred, writing that, while the conclusion that the NSC is not subject to FOIA requests has implicitly been accepted by Congress in its FOIA amendments and, accordingly, the question of that position's wisdom "is best
considered a political issue for Congress and the President, not for this Court."

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...d4993/1/hilite/


Panel: Circuit Judges Raggi, Wesley, and Lynch

Argument Date: 03/02/2015

Date of Issued Opinion: 01/26/2016

Docket Number: 13‐3792‐cv

Decided: Affirmed

Case Alert Author: Jake B. Sher

Counsel: Ramzi Kassem, Main Street Legal Services, Inc., Long Island City, N.Y., for Plaintiff-Appellee; Jayne Randall Linney, Civil Division, United States Department of Justice, Washington, D.C., for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Defendant‐Appellee.

Author of Opinion: Judge Raggi for majority; Judge Wesley concurring.

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 01/27/2016 07:45 AM     2nd Circuit  

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