RECORD NO.

08-5188
ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED
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 OF APPELLANT

Anne L. Weismann
Melanie T. Sloan
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
(202) 408-5565

Counsel for Appellant

THE LEX GROUPDC ♦ 1750 K Street, NW ♦ Suite 475 ♦ Washington, DC 20006

(202) 955-0001 ♦ (800) 815-3791 ♦ Fax: (202) 955-0022 ♦ www.thelexgroupdc.com
 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel certifies as follows:

A. Parties and Amici.

Plaintiff-appellant is Citizens for Responsibility and Ethics in Washington, a non-profit

organization. Defendant-appellee is the Office of Administration, a part of the Executive Office

of the President.

There are no amici curiae in this Court. Judicial Watch, Inc. appeared as amicus curiae

in the district court.

B. Rulings Under Review.

The rulings under review are the order and memorandum opinion of District Court Judge

Colleen Kollar-Kotelly issued on June 16, 2008, found in the Joint Appendix at pp. 323-361 and

appearing as items # 53 and #54 on the district court docket (D.D.C. No. 07-cv-964). The

district court’s opinion of June 16, 2008, is available at 2008 U.S. Dist. LEXIS 47333. Also

under review are the non-final orders underlying the final judgment, including District Court

Judge Kollar-Kotelly’s orders of February 11, 2008 (JA 104-09), appearing as item 33 on the

district court docket, and February 22, 2008 (JA 136-40), appearing as item 36 on the district

court docket.

C. Related Cases.

This case has not previously been before this Court. There are no related cases of which

appellant is aware.

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

Counsel for Appellant

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 RULE 26.1 DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1 and D.C. Cir. Rule 26.1, Plaintiff Appellant Citizens for

Responsibility and Ethics in Washington (“CREW”) submits its corporate disclosure statement.

(a) CREW has no parent company, and no publicly-held company has a 10% or

greater ownership interest in CREW.

(b) CREW is a non-profit corporation, organized under section 501(c)(3) of the

Internal Revenue Code. Through a combined approach of research, advocacy, public education,

and litigation, CREW seeks to protect the rights of citizens to be informed about the activities of

government officials and to ensuring the integrity of those officials. Among its principle

activities, CREW routinely requests information from government agencies under the Freedom

of Information Act (FOIA) and pursues its rights to information under the FOIA through

litigation. CREW then disseminates, through its website and other media, both documents it

receives in response to its FOIA requests and written reports based in part on those documents

and information obtained through other administrative processes.

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 TABLE OF CONTENTS

Page

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES . . . . . . . . . . . . . . . . . i

CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

I. THE DISTRICT COURT ERRED BY DISMISSING PLAINTIFF’S

COMPLAINT BASED ON ITS FINDING THAT OA IS NOT AN
AGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. Lacking The Function Of Advising And Assisting The

President, OA Is An Agency Subject To The FOIA . . . . . . . . . . . . . . . . 14

1. OA’s Chartering Documents Confirm Its Agency Status . . . . . . 16

2. OA Functions As A Separate Administrative Agency . . . . . . . . 18

3. OA’s Past Compliance With The FOIA Evidences Its

Agency Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

4. OA Is An Agency Because It Serves All EOP Offices

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 Except That Of The President . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

B. Application Of Meyer’s Three-Part Agency Test

Demonstrates That OA Is An Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

II. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFF’S

COMPLAINT FOR LACK OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . 31

III. THE DISTRICT COURT IMPROPERLY LIMITED DISCOVERY TO

JURISDICTIONAL PROOF AND DENIED PLAINTIFF PATENTLY
RELEVANT DISCOVERY ON DEFENDANT’S AGENCY STATUS . . . . . . 35

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVICE

ADDENDUM

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 TABLE OF AUTHORITIES

Page(s)

CASES

*Armstrong v. Executive Office of the President,

90 F.3d 553 (D.C. Cir. 1996) . . . . . . . . . . . . 2, 3, 12, 21, 23, 24, 25, 27, 28, 29, 30, 34, 38

Armstrong v. Executive Office of the President,

1 F.3d 1274 (D.C. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 33

Armstrong v. Bush,
924 F.2d 282 (D.C. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Dep’t of Justice v. Tax Analysts,

492 U.S. 136 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 32, 33, 34

El-Fadl v. Central Bank of Jordan,

75 F.3d 668 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Goldgar v. Office of Administration,

26 F.3d 32 (5th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

GTE New Media Servs. v. BellSouth Corp.,

199 F.3d 1343 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Haddon v. Walters,
43 F.3d 1488 (D.C. Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Intelsat Global Sales & Mktg. v. Cmty of Yugoslav Posts, Tels. & Tels.,
534 F. Supp. 2d 32 (D.D.C. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-36

Kissinger v. Reporters Comm. for Freedom of the Press,

445 U.S. 136 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

Kleiman v. Dep’t of Energy,

956 F.2d 335 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Lee v. Dep’t of Justice,

413 F.3d 53 (D.C. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 36

Medical Solutions Inc. v. C Change Surgical LLC,

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 468 F. Supp. 2d 130 (D.D.C. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

*Meyer v. Bush,
981 F.2d 1288 (D.C. Cir. 1993) . 3, 6, 10, 12, 13, 16, 18, 21, 26, 27, 28, 29, 30, 31, 34, 38

Nat’l Sec. Archive v. Archivist of the U.S.,

909 F.2d 541 (D.C. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Nat’l Taxpayers Union, Inc. v. United States,

68 F.3d 1428 (D.C. Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Pacific Legal Found. v. Council on Envtl. Quality,

636 F.2d 1259 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26, 34

Public Citizen v. Dep’t of State,

276 F.3d 634 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

490 U.S. 477 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 32

*Rushforth v. Council of Economic Advisers,

762 F.2d 1038, 1040 (D.C. Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 21, 23, 27, 34

Ryan v. Dep’t of Justice,

617 F.2d 781, 788 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 15

Sierra Club v. Andrus,

581 F.2d 895 (D.C. Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 34

*Soucie v. David,
448 F.2d 1067 (D.C. Cir. 1971) . . . . . . . . . . . . . . . . . . . . . 5, 11, 13, 23, 26, 30, 31, 37, 38

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Stewart v. Nat’l Educ. Ass’n,

471 F.3d 169 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

*Sweetland v. Walters,
63 F.2d 852 (D.C. Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 27, 31, 32

United States v. Torres,

115 F.3d 1033 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

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United States v. Vanness,
85 F.3d 661 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Wilderness Soc’y v. Griles,

824 F.2d 4 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

STATUTES

3 U.S.C. § 1071(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 17

5 U.S.C. § 552(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

5 U.S.C. § 552(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5 U.S.C. § 552(a)(4)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,12, 34

5.U.S.C. § 552(a)(6)(C)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5 U.S.C. § 522(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5 U.S.C. § 552(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14

5 U.S.C. § 552(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 32

RULES

FED . R. CIV . P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 31, 34

FED R. CIV . P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12, 31, 34

REGULATIONS

5 C.F.R. § 2502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5 C.F.R. § 2502.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 22, 24

5 C.F.R. § 2502.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 23

36 C.F.R. § 1228.104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

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42 Fed. Reg. 56101, 91 Stat. 1633 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

44 Fed. Reg. 11197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 17

45 Fed. Reg. 47112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 22

42 Fed. Reg. 62891 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

OTHER AUTHORITIES

Executive Order 12028 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Executive Order 12028 § 3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Executive Order 12028 § 3(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Executive Order 12028 § 4(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 16

Executive Order 12122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 17

Executive Order 12122 § 4(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Executive Order 12122 § 4(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

H.R. Rep. No. 1497, 89th Cong., 2d Sess., 9 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess. 14 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . 2-3, 14

S. Rep. No. 813, 89th Cong., 2d Sess., 8 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

* Authorities we chiefly rely upon are marked with an asterisk

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 GLOSSARY

CEQ Council on Environmental Quality

CREW Citizens for Responsibility and Ethics in Washington

E.O. Executive Order

EOP Executive Office of the President

FOIA Freedom of Information Act

JA Joint Appendix

NSC National Security Council

OA Office of Administration

OST Office of Science and Technology

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 STATEMENT OF JURISDICTION

This Court has jurisdiction over this timely appeal from a final judgment in the United

States District Court for the District of Columbia under 28 U.S.C. § 1291. The district court’s

jurisdiction was based upon 5 U.S.C. §§ 552(a)(4)(B), 552(a)(6)(C)(i) and 28 U.S.C. § 1331.

STATEMENT OF THE ISSUES

This appeal presents three issues for review. First, did OA meet its burden of proving

that it is not an agency subject to the Freedom of Information Act (“FOIA”)? Second, did the

district court err in dismissing plaintiff’s complaint for lack of subject-matter jurisdiction based

on the court’s conclusion that the Office of Administration (“OA”), from which plaintiff sought

records under the FOIA, is not an agency? And third, did the district court err in severely

limiting the scope of discovery, which the court characterized as jurisdictional in nature, and

refusing to permit plaintiff to conduct any discovery on specific issues that bear directly on OA’s

agency status under the FOIA?

STATUTES AND REGULATIONS

The Freedom of Information Act requires an “agency” to make agency records available

upon request unless the agency can show the requested records fall within one of nine

exemptions in the Act. See 5 U.S.C. § 552(a)(3), (b). For purposes of the FOIA, “agency” is

defined to include, inter alia, “the Executive Office of the President.” 5 U.S.C. § 552(f). The

inclusion of the Executive Office of the President (“EOP”) in the FOIA’s definition of agency

was not intended to cover “the President’s immediate personal staff or units in the Executive

Office whose sole function is to advise and assist the President.” H.R. Conf. Rep. No. 1380, 93d

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Cong., 2d Sess. 14 (1974); Armstrong v. Executive Office of the President, 90 F.3d 553, 559

(D.C. Cir. 1996).

Since 1980, OA has published regulations implementing the FOIA. 45 Fed. Reg. 47112

(July 14, 1980 (JA 69-75), currently found at 5 C.F.R. Part 2502. OA’s regulations provide,

inter alia, that “all records by the Office of Administration are available to the public, as

required by the Freedom of Information Act.” 5 C.F.R. § 2502.16. The relevant statutory and

regulatory provisions are reprinted in the addendum to this brief.

STATEMENT OF THE CASE

This appeal arises from two FOIA requests Citizens for Responsibility and Ethics in

Washington (“CREW”) sent to the Office of Administration, a component of the EOP, in April

2007. The requests sought records related to the loss of emails from the EOP’s email systems

and environments, including analyses prepared by OA of the missing email and proposals

developed to restore the missing email and to implement a new electronic record keeping system.

JA24-27, 30-33. CREW requested “documents [that] were either created by individuals within

the Office of Administration and/or are in the possession of the Office of Administration.” JA

31. CREW also sought expedition based on the widespread and exceptional media interest in the

missing White House emails, the revelations about the use by high-ranking EOP officials of

outside email accounts, and the fact that the White House has known since the fall of 2005 that

many millions of emails are missing from its records management system, but has done nothing

to address or fix the problem. JA 27, 33.

OA granted CREW’s request for expedited processing, but advised CREW it could

neither process the requests within the FOIA’s mandatory time-frames nor provide an anticipated

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date for completing processing. JA 36. CREW subsequently clarified further the scope of its

requests, JA 38-39, but OA was still unable to provide CREW an anticipated date for completing

processing.

On May 23, 2007, having received neither a production of documents nor a production

date, CREW filed its complaint along with a motion for a preliminary injunction. In lieu of

litigating CREW’s motion, the parties agreed, with the Court’s supervision and assistance, to a

timetable for OA to process prioritized categories of documents. JA 41-42.

Pursuant to that timetable, which was embodied in two court orders (JA 41-44, Order of

June 11, 2007), OA made its first production on June 21, 2007, producing 50 pages of responsive

documents and withholding 454 pages under claim of exemptions. JA 261-62. With its

production OA also asserted that it was processing CREW’s request “as a matter of

administrative discretion” based on its claim that “on occasion” it provides direct administrative

support to the president. Id. at 261. OA made its second response pursuant to the court-ordered

timetable on August 24, 2007, advising CREW that it was withholding 3,470 additional

responsive pages. JA 78.

In the interim, on August 21, 2007, OA filed a motion for judgment on the pleadings

based on its claim that it is not an agency subject to the FOIA. In opposition, CREW argued,

inter alia, that the issue of whether OA is an agency could not be decided on the basis of the

pleadings and that CREW, accordingly, should be afforded discovery on the agency issue.

CREW also outlined the nature of the discovery it needed, modeled after the three areas of

relevant inquiry identified in Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993), and Armstrong v.

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

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 On February 11, 2007, the district court issued an order denying OA’s motion for

judgment on the pleadings without prejudice, based on its conclusion that “very limited

discovery -- which might be considered jurisdictional in nature -- is appropriate.” JA 104

(emphasis in original). The court deemed most of the discovery CREW had outlined as “entirely

unnecessary in light of the limited question at issue.” Id. at 108. Specifically, the court refused

to allow CREW discovery on “the nature of OA’s communications and interactions with the

president and his advisors and the extent to which the president has expressly approved OA

decision, findings, or other initiatives,” which the court characterized as “ill directed because the

issue here is not whether OA is part of the President’s ‘immediate personal staff . . .’” Id.

(citation omitted). The court also denied CREW’s request for discovery on OA’s staffing and

organizational structure, and limited discovery on OA’s actual function to “evidence regarding

OA’s authority over or responsibilities to any third parties . . .” Id. at 108-09.

As ordered by the district court, the parties submitted a joint discovery plan on February

21, 2008. JA 110-128. By order dated February 22, 2008, the court denied CREW much of the

discovery requested in its discovery plan on the basis that it related to issues either uncontested

or addressed by documents already in the record. JA 136-140. The court limited CREW’s

discovery further to “OA’s provision of services for, authority over, or responsibilities to third

parties outside of EOP units.” Id. at 137 (emphasis in original).

During the discovery phase, OA objected to written discovery seeking to ascertain

precisely when OA took the position it is no longer an agency. In a March 28, 2008 telephone

conference, the district court posed a number of questions to OA’s counsel on this issue and

directed that OA respond thereafter with a sworn agency declaration. JA 141, 146-164. On

4
April 18, 2008, OA submitted the declaration of OA General Counsel M. Elizabeth Medaglia

stating that OA reached a final decision that it is not an agency on August 21, 2007. JA 175,

177. The district court denied CREW’s motion to compel OA to produce a memorandum from

the Department of Justice’s Office of Legal Counsel (“OLC”), also issued on August 21, 2007,

that set forth OLC’s determination that OA is not an agency subject to the FOIA. JA 247-260.

On June 16, 2008, the district court issued a memorandum opinion and order granting

OA’s motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the

Federal Rules of Civil Procedure. JA 322-361. The district court concluded that the issue of

OA’s agency status “at least arguably goes to the Court’s jurisdiction to hear a FOIA case,” id. at

337-38, such that “Rule 12(b)(1) appears to be the proper authority for OA’s Motion to

Dismiss.” Id. at 338. The court noted that it could, in the alternative, grant defendant’s motion

to dismiss under Rule 12(b)(6) for failure to state a claim. Id.

As a consequence of its jurisdictional ruling, the court adjudicated the motion to dismiss

under the procedures appropriate to a Rule 12(b)(1) motion, not a Rule 12(b)(6) motion,

considering “the complaint supplemented by undisputed facts, plus the court’s resolution of

disputed facts.” JA 338 (quotation omitted). The court placed on plaintiff the “burden to prove

subject matter jurisdiction by a preponderance of the evidence.” Id. at 339. That evidence was

limited by the court’s earlier ruling that given the jurisdictional nature of the issue, “the Court

shall significantly restrict the scope of discovery that CREW may pursue as to OA’s agency

status.” JA 107.

On the merits of defendant’s motion, the district court concluded that under Soucie v.

David, 448 F.2d 1067 (D.C. Cir. 1971), OA is not an agency because it “serves solely to assist

5
and advise the President, and does not exercise substantial independent authority.” JA 352. The

court also found that OA is not an agency under the three-factor test set forth in Meyer v. Bush,

981 F.2d 1288 (D.C. Cir. 1993). Although the court concluded that two of the factors -- OA’s

organizational structure and lack of operational proximity to the president -- support OA’s

agency status, the court held that OA is not an agency because of the nature of its delegated

authority. JA 355-56.

Plaintiff filed a timely notice of appeal. JA 362. In addition, plaintiff sought a stay

pending appeal, which the district court granted in part on July 9, 2008. JA 363-76. The stay

expires on January 5, 2009, at which time CREW may file a renewed motion for a stay pending

appeal if this appeal has not yet been resolved. Id. at 376.

STATEMENT OF FACTS

President Jimmy Carter first established OA through his Reorganization Plan No. 1 of

1977 (“Reorganization Plan”). As initially constituted, OA was to be “headed by the President”

and authorized to “provide components of the [EOP] with such administrative services as the

President shall from time to time direct.” Reorganization Plan § 2, 42 Fed. Reg. 56101, 91 Stat.

1633. In the accompanying message to Congress, President Carter explained that centralizing

these services within a single separate EOP entity would “provide support in administrative

services common to all EOP entities.” JA 86. Prior to OA’s creation, the White House relied

not only on EOP components for administrative support services, but also on other federal

agencies such as the General Services Administration. Id.

Subsequently, through Executive Order 12028 (“E.O. 12028"), President Carter clarified

more specifically OA’s duties and responsibilities. Although OA was to provide “common

6
administrative support and services to all units within the [EOP],” it was not to provide services

“primarily in direct support of the President.” E.O. 12028, § 3(c), 42 Fed. Reg. 62891 (Dec. 12,

1977). Responsibility for providing the president with administrative support and service

functions remains instead with the White House Office. Id., § 5.

President Carter also transferred direct responsibility for OA from the president to the

director of OA, “[s]ubject to such direction or approval as the President may provide or require.”

Id. at § 4(a). E.O. 12028 expressly authorizes OA’s director to “organize the [OA],” “employ

personnel,” “contract for supplies and services” and “do all other things that the President, as

head of the [OA] might do.” Id. at §§ (1)-(4) (emphasis added).

In a subsequent executive order, President Carter reiterated this transfer of power from

the president to OA’s director and expanded the director’s power to include “perform[ing] the

functions of the President under Section 1071(b) of Title 3 of the United States Code” and

“appoint[ing] and fix[ing] the pay of employees pursuant to the provisions of Section 107(b) of

Title 3 of the United States Code.” Executive Order 12122 “E.O. 12122"), §§ 4(b), (c), 44 Fed.

Reg. 11197 (Feb. 26, 1979). OA’s director is not, however, “accountable for the program and

management responsibilities of units within the [EOP]”; responsibility for those functions

remains with the head of each unit. Id. at § 4(d).

From its inception in 1977, OA has considered itself to be an agency subject to the FOIA

and acted accordingly. A June 28, 1978 White House memorandum concludes that because “OA

performs functions for other offices within the EOP and there are no identifiable units within the

OA which function solely to serve the President . . . it is reasonable to conclude that the Office

of Administration is an ‘agency’ subject to the Act [the FOIA].” JA 98 (emphasis added). More

7
recently, in an August 2007 posting on its website, the White House expressly delineated OA as

an agency subject to the FOIA. JA 76.

Consistent with its self-proclaimed agency status, OA adopted FOIA regulations in

1980,1 which provide, inter alia, that “all records by the Office of Administration are available

to the public as required by the Freedom of Information Act.” 5 C.F.R. § 2502.16. OA has also

complied with a number of other requirements that amendments to the FOIA impose, including

posting on-line an index and description of its major information and record locator systems,2

filing and posting annual FOIA reports, and promulgating Touhy regulations.3 JA 291. During

the 10-year period that OA filed annual FOIA reports it processed hundreds of FOIA requests.4

Beyond the FOIA, OA has complied with a number of other statutes applicable only to federal

agencies. These include the Federal Records Act, applicable to agency components of the EOP,

and the Americans with Disabilities Act. JA 209, 358.

Within the EOP, OA exercises authority over other EOP components. For example, as

set forth in OA’s Fiscal Year 2008 Budget, OA’s Office of the Chief Financial Officer “directs,

manages, and provides policy guidance and oversight of financial management activities and

operations, including procurement and travel support.” JA 46. Similarly, OA’s chief

information officer provides “leadership to the components that OA supports.” Id.

Outside of the EOP, OA contracts for a variety of services to be provided to OA and

1
OA’s original FOIA regulations are at JA 9-75.
2
These are found at www.whitehouse.gov/oa/functions/
3
OA”s Touhy regulations are found at 5 C.F.R. § 2502.30.
4
OA’s electronic reading room, www.whitehouse.gov/oa/foia/readroom.html, contains
the annual FOIA reports that OA filed from 1996 through 2006.

8
other EOP components. For example, in September 2004, OA contracted and entered into an

interagency agreement with the Department of Interior for the implementation of an email

archive retrieval system that would service the entire EOP. JA 263-67. OA also enters into

reimbursable agreements with non-EOP executive branch agencies for the provision of services,

including the Department of Education (JA 309-12), the Department of Health and Human

Services (JA 313-14), the Department of Labor (JA 315-317), and the Treasury Franchise Fund

(JA 318-20). OA’s former director, Alan Swendiman, explained that these contracts are similar

to those that other non-EOP executive branch agencies enter into “to handle certain

administrative functions.” JA 284.

OA has also entered into interagency agreements whereby OA provides goods and

services to other executive branch entities, including the Department of the Navy (JA 210-11),

the Harry S. Truman Scholarship Foundation (JA 268), White House Fellows (JA 269), the

President’s Commission on White House Fellowships (JA270), the White House

Communications Agency (JA 271-275), and the General Services Administration (JA 276).

OA’s interactions with non-EOP entities also include the procurement of temporary

experts, consultants and detailees from other non-EOP federal agencies. JA 204-5, 295-96. OA

also interacts with the National Archives and Records Administration (“NARA”) with respect to

record preservation and management functions that OA performs on behalf of itself and other

EOP components. JA 237. Consistent with that role, NARA has requested that OA’s director

investigate the possible loss of federal records within the federal agency components of the EOP

and furnish NARA with a report of his findings, as NARA regulations require, specifically 36

C.F.R. § 1228.104. JA 321. That regulation imposes on “the head of a Federal agency” the

9
obligation to “report any unlawful or accidental destruction, defacing, alteration, or removal of

records.” 36 C.F.R. § 1228.104.

On August 21, 2007, OA decided that it was not an agency subject to the FOIA and

accordingly would no longer comply with the FOIA, even as to CREW’s FOIA requests that it

had accepted for processing months earlier. JA 177. This decision was preceded by a

consultative process with the Department of Justice’s Office of Legal Counsel, culminating in a

formal memorandum from the OLC also dated August 21, 2007. Id.

SUMMARY OF ARGUMENT

OA shares none of the attributes of the governmental entities previously recognized by

this Court as non-agencies including, most significantly, the function of advising and assisting

the president. Established as a separate administrative entity within the EOP, OA provides

support services to all EOP components except for the president. OA’s chartering documents

reflect an expansion of its authority and independence from the president, including the express

transfer of power from the president -- initially designated as head of OA -- to OA’s director.

Just as significantly, OA has no structural or operational proximity to the president.

There is a complete dearth of evidence in the record that OA has ever provided any support or

service directly to the president or that the president has ever provided OA with any direction or

approval. Far from being “a hair’s breadth from the President,”5 OA functions outside the

presidential orbit and at best provides the president indirect assistance by ensuring that the rest of

EOP functions smoothly.

Every indicia is that OA does not have the sole function of advising and assisting the

5
Meyer v. Bush, 981 F.2d 1288, 1294 (D.C. Cir. 1993).

10
president and, as a necessary corollary, must be considered an agency subject to the FOIA.

Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971). Any other conclusion would contravene

congressional purpose and intent in expanding the FOIA’s coverage to include the EOP.

Subjecting an EOP entity like OA that does not function as part of the president’s immediate and

personal staff to the FOIA raises none of the constitutional concerns implicated by subjecting the

president and his personal staff to record disclosure laws. Soucie, 448 F.2d at 1073, 1075; Ryan

v. Dep’t of Justice, 617 F.2d 781, 788 n.19 (D.C. Cir. 1980). Indeed, OA consistently has

operated under a FOIA regime almost from its inception, with not even a hint that compliance

with the FOIA has intruded impermissibly into areas committed constitutionally to the president.

In concluding nevertheless that OA is not an agency, the district court refused to credit

OA’s chartering documents with their plain meaning and intent, misapplied precedent

recognizing the probative value of prior consistent compliance with the FOIA, and failed to give

sufficient weight to OA’s lack of proximity to the president. Relying instead on only one prong

of Meyer’s three-factor test for agency status, the district court was persuaded that OA is not an

agency because it performs only administrative functions and only for EOP components.

This Circuit, however, has repudiated the notion that a single factor is outcome-

determinative of an EOP entity’s agency status. Nor has this Circuit ever acknowledged a

meaningful distinction between EOP entities that provide administrative support services and

EOP entities that perform more substantive programmatic functions. Instead, the focus is on the

degree of independence that an EOP entity exercises and whether it is a “separate administrative

entity,” Soucie, 448 F.2d at 1075, and therefore less like the president’s immediate personal

staff. Armstrong v. Executive Office of the President, 90 F.3d 553, 558 (D.C. Cir. 1996); Meyer,

11
981 F.2d at 1293.

Even if considered under the three-factor Meyer test, OA must still be considered an

agency because it has a self-contained structure, is not operationally proximate to the president,

and has no characteristics or functions similar to those of the president’s immediate personal

staff. The district court’s conclusion to the contrary rests on perceived distinctions in OA’s

functions that have no meaningful significance and fails to give sufficient weight to OA’s

complete lack of proximity to the president.

Not only did the district court err in concluding that OA is not an agency, it compounded

its error by treating the issue as jurisdictional in nature subject to dismissal under Rule 12(b)(1)

of the Federal Rules of Civil Procedure. D.C. Circuit precedent unambiguously holds that the

question of an EOP entity’s agency status under the FOIA is not a jurisdictional issue, but rather

goes to the merits and is appropriately addressed pursuant to Rule 12(b)(6). Sweetland v.

Walters, 63 F.2d 852, 855 (D.C. Cir. 1995). The district court was not free to disobey clear

Circuit precedent and rely, instead, on stray language in two Supreme Court cases that it

erroneously interpreted as treating the agency issue as a jurisdictional one. Rodriguez de Quijas

v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).

As a consequence of erroneously treating the agency issue as a jurisdictional question

subject to dismissal under Rule 12(b)(1), the district court improperly placed on the plaintiff the

burden of proving beyond a preponderance of the evidence that the requested records are agency

records. Under both the FOIA, 5 U.S.C. § 552(a)(4)(B), and Supreme Court precedent, Dep’t of

12
Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989), the agency -- not the requester -- bears the

burden of demonstrating that the records sought are not “agency records.”

Finally, the district court abused its discretion and committed an error of law when it

severely limited discovery to only jurisdictional proof and denied plaintiff the opportunity to

conduct discovery on patently relevant issues. Even beyond the jurisdictional limits it placed on

discovery, the district court ruled out of bounds nearly every mode of gathering evidence on

fundamental issues and then faulted CREW for not carrying the burden of proof that the court

erroneously placed on it. Off-limits areas of discovery included what functions OA has served

and how it has served them, OA’s role in coordinating and regulating activities among other

EOP components, the organization and structure of OA and its role within the EOP, OA’s

proximity to the president, and the nature of the services OA provides within the EOP. Taking a

check-list approach to the factors identified by this Circuit as relevant in Soucie and Meyer, the

district court failed to appreciate that an EOP entity’s agency status must be assessed by the

totality of the circumstances.

ARGUMENT

STANDARD OF REVIEW

The district court’s decision granting defendant’s motion to dismiss for lack of subject

matter jurisdiction is reviewed de novo. Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d

1428, 1432 (D.C. Cir. 1995). Likewise, the district court’s decision granting defendant’s motion

to dismiss for failure to state a claim upon which relief can be granted is reviewed de novo.

Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006). The district court’s

limitations on the discovery it afforded CREW are reviewed under an abuse of discretion

13
standard, Public Citizen v. Dep’t of State, 276 F.3d 634, 640 (D.C. Cir. 2002), except that a

discovery limitation that results from an erroneous application of a legal standard is reviewed de

novo. Lee v. Dep’t of Justice, 413 F.3d 53, 58-59 (D.C. Cir. 2005).

I. THE DISTRICT COURT ERRED BY DISMISSING PLAINTIFF’S

COMPLAINT BASED ON ITS FINDING THAT OA IS NOT AN AGENCY.

A. Lacking The Function Of Advising And Assisting The President, OA

Is An Agency Subject To The FOIA.

The starting point for the Court’s analysis must be the FOIA itself, which Congress

amended in 1974 to include within the definition of “agency” the Executive Office of the

President (“EOP”). 5 U.S.C. § 552(f). Thus, the default position for EOP components is agency

status. The exception, confirmed in the legislative history of the 1974 amendments to the FOIA,

is “the President’s immediate personal staff or units in the Executive Office whose sole function

is to advise and assist the President,” reflecting Congress’ intent to codify the holding in Soucie

v. David, 448 F.2d 1067 (D.C. Cir. 1971). H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess. 14

(1974). See also Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1040 (D.C. Cir.

1985).

In Soucie, the D.C. Circuit acknowledged the constitutional implications of a statute that

requires a president to disclose his records, but concluded there was no constitutional bar to

treating the Office of Science and Technology (“OST”), a component of the EOP, as an agency

because it did not have the sole function of advising and assisting the president. 448 F.2d at

1073, 1075. As the Soucie court reasoned, “If the OST’s sole function were to advise and assist

the President, that might be taken as an indication that the OST is part of the President’s staff

and not a separate agency.” Id. at 1075. But in addition to advising and assisting the president,

14
the OST also had an “independent function of evaluating federal programs . . .” Id. As such,

the D.C. Circuit deemed the OST a “separate administrative entity” and accordingly concluded

that subjecting it to the FOIA was not the same as subjecting the president and his immediate

staff to the FOIA. 448 F.2d at 1075.

By contrast, laws that regulate presidential action “raise[] ‘serious practical, political, and

constitutional questions that warrant careful congressional and presidential consideration.”

Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991) (“Armstrong I”); see also Armstrong v.

Executive Office of the President, 1 F.3d 1274, 1292 (D.C. Cir. 1993) (“Armstrong II”); Ryan v.

Dep’t of Justice, 617 F.2d 781, 788 n.19 (D.C. Cir. 1980) (“Failure to exempt presidential staff

from the FOIA would raise a constitutional issue of separation of powers.”). Accordingly, the

D.C. Circuit has avoided any constitutional problems of applying the FOIA to the president and

his immediate personal staff by concluding that where an EOP entity has “characteristics and

functions . . . similar to those of the president’s immediate personal staff,” that entity is not an

agency subject to the FOIA. Meyer v. Bush, 981 F.2d at 1293; Armstrong v. Executive Office of

the President, 90 F.3d 553, 558 (D.C. Cir. 1996) (“Armstrong III”). As the Court in Armstrong

III reasoned, “t]he closer an entity is to the President, the more it is like the White House staff,

which solely advises and assists the President . . .” 90 F.3d at 558.

Applying Soucie’s sole function test to OA yields the unmistakable conclusion that OA,

which advises and assists all but the president, is a “separate administrative entity” subject to the

FOIA. This is the conclusion first reached by President Jimmy Carter’s White House -- the very

White House that created OA in the first place. A June 28, 1978 White House memorandum

concludes that because “OA performs functions for other offices within the EOP and there are

15
no identifiable units within the OA which function solely to serve the President . . . it is

reasonable to conclude that the Office of Administration is an ‘agency’ subject to the Act [the

FOIA].” JA 98 (emphasis added).

1. OA’s Chartering Documents Confirm Its Agency Status.

This conclusion is underscored by OA’s chartering documents, which are the “most

important indication” of OA’s actual functioning.6 These documents establish definitely that OA

does not meet the most fundamental prerequisite for non-agency status -- an entity with a sole

function of advising and assisting the president. Most significantly, Executive Order 12028,

issued by President Carter in 1977, dictates specifically that OA’s duties and responsibilities in

providing “common administrative support and services to all units within the [EOP]” do not

include “such services provided primarily in direct support of the President.” E.O. 12028, § 3(a).

Instead, the White House Office -- and not OA -- continues to bear the responsibility for

performing administrative support and service functions “in direct support of the President.” Id.

at § 5.

In addition, E.O. 12028 transferred direct responsibility for OA from the president --

initially identified in the Reorganization Plan establishing OA as its head -- to OA’s director,

subject only to “such direction or approval as the President may provide or require.” E.O.

12028, § 4(a). Under E.O. 12028, OA’s director is empowered to “organize the [OA],” “employ

personnel,” “contract for supplies and services” and “do all other things the President, as head

of the [OA], might do.” Id. at §§ (1)-(4) (emphasis added). A subsequent executive order,

issued in 1979, expanded the powers of OA’s director to include “perform[ing] the functions of

6
Meyer, 981 F.2d at 1294.

16
the President under Section 107(b) of Title 3 of the United States Code” and appoint[ing] and

fix[ing] the pay of employees pursuant to the provisions of Section 107(b) of Title 3 of the

United States Code . . .” E.O. 12122, §§ 4(b), (c). Thus, through executive orders the president

has afforded OA broad authority and delegated to OA’s director powers initially vested in the

president.7

Thus, these chartering documents demonstrate that the president at most remains free to

provide OA’s director with occasional direction or approval. The mere possibility that the

president may provide OA with occasional direction or approval does not, however, transform

OA into the functional equivalent of the president’s immediate personal staff.

In ruling that OA is nevertheless not an agency subject to the FOIA, the district court

refused to credit OA’s chartering documents with their plain meaning. Instead, the court

concluded that even though these executive orders “do not generally authorize OA to provide

administrative services in direct support of the President,” they do “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.” JA 348 (emphasis in original). Under

7
Although OA now rejects this view of its chartering documents, historically it has
advanced the very interpretation CREW advances here. For example, in its brief filed in the
Supreme Court in opposition to the plaintiff’s petition for certiorari in Armstrong v. Executive
Office of the President, No. 96-1242 (S. Ct. 1996), the government expressly objected to the
suggestion put forth by the petitioner that the National Security Council (“NSC”) -- the entity at
issue -- was like OA in that both were headed by the president. Instead, as the government’s
brief explains:

By Executive Order No. 12,122, 44 Fed. Reg. 11,197 (1979),the President has
effected a broad delegation of authority over the OA to its Director.

Available at http://www.usdoj.gov/osg/briefs/1996/w961242w.txt.

17
this logic, however, 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. See Meyer, 981 F.2d at

1293 (“Every action taken by any executive branch official can be described as ‘assisting’ the

President.”). But only those EOP entities that are proximate to the president and function as the

equivalent of the president’s immediate personal staff by directly advising and assisting the

president are exempt from the FOIA as non-agencies.8 An entity such as OA that at most

provides indirect assistance to the president cannot properly be deemed the functional equivalent

of the president’s immediate personal staff.9

2. OA Functions As A Separate Administrative Agency.

Even the theoretical possibility that OA could receive direction or approval from the

president is not enough to transform OA into a non-agency, especially given the complete dearth

of evidence in the record here that any president has, in fact, provided OA’s director with any

direction or approval.10 Just as significant, the record reflects virtually no instance where OA

has provided direct support to the president. All that the district court could identify was a

request in OA’s Fiscal Year 2008 budget that funds be shifted from the White House Office to

8
Id. at 1294.
9
The district court also relied heavily on President Carter’s initial explanation to
Congress about his proposed reorganization, which included the creation of OA and was “based
on the premise that the EOP exists to serve the President and should be structured to meet his
needs” and the fact that, as initially constituted, OA was headed by the president. JA 347. As
explained supra, President Carter through E.O. 12028 subsequently changed that structure by
delegating to OA’s director the president’s powers and authority. Moreover, President Carter’s
statements related to the entirety of the EOP, which includes EOP components that are agencies
and therefore not exempt from the FOIA.
10
Of course, as discussed infra, the record is unduly truncated because of the district
court’s refusal to grant CREW’s request for discovery on the nature of OA’s interaction with the
president.

18
OA to handle “employee transportation subsidies, burn bag pick up services, and payment of

employee Flexible Spending Account administrative fees.” JA 349. The mere shifting of funds

from one EOP entity to another hardly suggests that OA is providing administrative support

directly to the president. Indeed, without more, the logical inference of this budget entry is that a

transfer of funds to OA was requested to meet OA’s budget needs, such as providing employee

transportation subsidies to OA employees.11

OA’s functions have not changed since the issuance of the Carter White House

memorandum. It remains the case that no unit of OA functions solely to serve the president, and

most likely none serves the president in any fashion. Instead, OA continues to provide

administrative support and services to EOP components, including all of the agency EOP

components. JA 236.

Moreover, the scope and degree of services OA provides agency components has

expanded since OA’s inception, further evidencing its status as a “separate administrative

entity.” For example, OA now contracts with non-EOP agencies for a variety of services both

for itself and other EOP components. Contracts OA has entered into with outside agencies

include a contract with the Department of Interior for the implementation of an email archive

retrieval system to service the entire EOP (JA 263-67); an agreement with the Department of the

Navy for the Navy’s provision of voice systems operations and maintenance (JA 210-11); and

interagency agreements with the Harry S. Truman Scholarship Foundation (JA 268), White

11
That other expenses of OA, including OA’s salaries, are paid from funds that come
from other EOP components such as the Office of Management and Budget, the OST, the U.S.
Trade Representative and the Council on Environmental Quality (“CEQ”) (see JA 47-48), all of
which are agencies subject to the FOIA, confirms the logic of this inference.

19
House Fellows (JA 269), the President’s Commission on White House Fellowships (JA 270), the

White House Communications Agency (JA 271-275), and the General Services Administration

(JA 276).

In addition, OA enters into reimbursable agreements with other executive branch

agencies for the provision of services, a process former OA Director Alan Swendiman described

as “a form of outsourcing.” (JA 292) Examples include a January 2008 reimbursable agreement

with the Department of Education for the provision of financial support for the president’s visit

to a school in Chicago, Illinois (JA 307-12), and a memorandum of understanding OA executed

on behalf of the Office of National Drug Control Policy with the Department of Health and

Human Services for the processing of certain requests for funds (JA 313-14). OA also entered

into reimbursable service agreements with the Department of Labor (JA 315-17) and the

Treasury Franchise Fund (JA 318-20). Further evidence of OA’s agency status includes

arranging for non-reimbursable details with other non-EOP agencies. See JA at 204-05.

Within the EOP, OA exercises independent authority and autonomy, as reflected in its

leadership role in providing administrative support to EOP components. OA’s chief information

officer provides “leadership to the components that OA supports.” JA 46. Similarly, OA’s

Office of the Chief Financial Officer “directs, manages, and provides policy guidance and

oversight of financial management activities and operations, including procurement and travel

support.” Id. And, as former OA Director Alan Swendiman testified before Congress, the

Office of the Chief Information Officer within OA bears responsibility “for providing all EOP

components with unified enterprise services” as well as providing “coordination of compliance

20
programs for Federal records,” and protecting and safeguarding the EOP network. JA 236-37.

OA also has a key role in presidential transition planning with NARA. Id. at 237.

All of this evidence establishes that OA possesses and has exercised the authority to

“take direct action,” thereby functioning as a discrete administrative entity separate from the

president and his immediate staff. Rushforth, 762 F.2d at 1041; Soucie, 448 F.2d at 1075. At

the same time, OA is neither functionally nor operationally proximate to the president and

therefore does not occupy a status equivalent to the president’s immediate personal staff. See

Armstrong III, 90 F.3d at 560 (court looks to “how close the operation of the [entity] is to that of

the presidency, and by examining the nature of such authority as has been delegated . . .”). That

the president derives an indirect benefit from OA’s functioning -- which allows the rest of the

EOP beyond the president to function smoothly -- does not demonstrate the requisite presidential

proximity to render OA a non-agency. Tellingly, the record contains no evidence that any of

OA’s personnel, including its director, interacts in any way with the president, much less

evidence that OA is “a hair’s breadth from the President.”12 Meyer, 981 F.2d at 1294. Failing to

meet the essential pre-requisite of advising and assisting the president, OA must be considered

an agency regardless of the nature of the independent authority it exercises.

12
OA’s director, for example, does not report directly to the president, but instead
through “a chain of command,” JA 279. By contrast, in Armstrong III there was an “intimate
organizational and operating relationship between the President and the NSC”; the NSC is
chaired by the president and controlled by the president’s national security advisor “working in
close contact with and under the direct supervision of the President . . .” 90 F.3d at 560
(emphasis added). Based on this lack of operational proximity between OA and the president,
the district court here properly concluded that OA is not proximate to the president. JA 354.

21
 3. OA’s Past Compliance With The FOIA Evidences Its Agency
Status.

Nor can it be said that subjecting OA to the FOIA would raise any constitutional

concerns. Indeed, until CREW brought this lawsuit OA functioned as an agency under the

FOIA, with no hint of any undue intrusion into areas committed constitutionally to the president.

OA promulgated a full set of regulations implementing the FOIA three years after its inception,

in 1980.13 Those regulations are still on the books and provide, among other things, that “all

records by the Office of Administration are available to the public, as required by the Freedom

of Information Act.” 5 C.F.R. § 2502.16 (emphasis added). Further, as the FOIA requires,14 OA

publishes an index and description of its major information and record locator systems. See

http://www.whitehouse.gov/oa/functions (last visited Aug. 20, 2008). Likewise, OA filed annual

FOIA reports from Fiscal Year 1996, when amendments to the FOIA first imposed this reporting

requirement, through Fiscal Year 2006, all of which OA has posted on its electronic reading

room, http://www.whitehouse.gov/oa/foia/readroom.html (last visited Aug. 20, 2008), as the

FOIA also requires. 5 U.S.C. § 552(a)(2).15 Consistent with the FOIA regime it has adopted,

OA accepted CREW’s FOIA request at issue here for processing, granted CREW’s requests for a

fee waiver and expedition and, once in litigation, agreed to a timetable for processing six

prioritized

13
See 45 Fed. Reg. 47112 (July 14, 1980) (JA 69-75).
14
5 U.S.C. § 552(g).
15
Moreover, until early September 2007, the White House official website also included
OA in its enumeration of EOP entities that are agencies subject to the FOIA. JA 76.

22
categories of documents in resolution of CREW’s motion for a preliminary injunction. JA 36,

41-42.16

The district court acknowledged that “OA consistently operated as an agency subject to

the FOIA until August 2007,” but nonetheless discounted all of this evidence as non-probative,

relying on Armstrong III. JA 357. The court’s conclusion, however, misconstrues this Circuit’s

prior holdings on the probative value of an agency’s past functioning under the FOIA.

Starting with Soucie, this Circuit has credited an EOP entity’s consistent past compliance

with the FOIA -- the very compliance demonstrated by OA here -- as evidence of the entity’s

current agency status. In Soucie, the court concluded that OST’s publication of FOIA

regulations “lends additional support to the conclusion that it is a separate administrative entity.”

448 F.2d at 1075. Similarly, as discussed in Rushforth, this Circuit rejected a “proffered on

again-off again definition [of agency status]” in Pacific Legal Found. v. Council on Envtl.

Quality, 636 F.2d 1259 (D.C. Cir. 1980), crediting instead the CEQ’s past admission that it was

an agency. 762 F.2d at 1041, quoting Pacific Legal Found., 636 F.2d at 1264. Although the

court in Armstrong III ultimately discounted as “not illuminat[ing]” the NSC’s past conduct,

which included prior references to itself as an agency, this was because “quite simply, the

Government’s position on that question has changed over the years . . . the NSC’s past behavior

has been inconsistent -- both logically and factually.” 90 F.3d at 566. For example, “the NSC

16
Throughout its history OA has also complied with other statutes applicable to agencies,
such as the Privacy Act, the Economy Act and federal anti-discrimination laws, and has
promulgated Touhy regulations consistent with its agency status, found at 5 C.F.R. § 2502.30.
See JA 358-59. The district court without analysis discounted all of this evidence as “not
probative of . . . OA’s agency status under the FOIA.” Id. at 359. To the contrary, it further
evidences OA’s independence from and lack of proximity to the president; as with the FOIA,
OA’s compliance with these statutes has implicated no separation of powers concerns.

23
was treating some of its institutional records as though they were subject to the FOIA and the

FRA, [and] it was declining to treat other records in that way.” Id.

Here, by contrast, OA’s 30-year past practices consistently have reflected its status as an

agency under the FOIA. Unlike the NSC, OA has never “voluntarily subjected [only] certain of

its records to the FOIA.”17 Instead, it has established and followed a comprehensive FOIA

regime, making the entirety of its records generally available to the public under the FOIA. See

5 C.F.R. § 2502.16. Moreover, as the district court correctly noted, “OA has not meaningfully

contested its agency status in previous litigation and at least two courts have assumed, without

deciding the issue, that OA is an agency subject to the FOIA.” JA 358, citing Nat’l Sec.

Archive v. Archivist of the U.S., 909 F.2d 541 (D.C. Cir. 1990), Goldgar v. Office of

Administration, 26 F.3d 32 (5th Cir. 1994). Accordingly, OA stands in decidedly different shoes

than the NSC and OA’s sudden about-face on the agency question in direct response to a FOIA

request from CREW seeking potentially very embarrassing, if not outright damaging, documents

evidences precisely the kind of “on again-off again definition” this Circuit has rejected as

insufficient to establish non-agency status.

4. OA Is An Agency Because It Serves All EOP Offices Except

That Of The President.

At bottom, the district court appears to have been most persuaded in reaching its

conclusion that OA is not an agency by the fact that OA provides only administrative support

and then only to other EOP components. See JA at 348. Although the district court also

recognized that OA “is actively carrying out the functions that have been delegated to it,

17
Armstrong III, 90 F.3d at 566.

24
primarily by contracting with non-EOP entities for the provision of supplies and services to the

EOP,” the court nevertheless concluded that OA is not an agency based on a purported absence

of evidence in the record that OA exercises “‘substantial independent authority.’” (citation

omitted) (JA 351). According to the district court, precedent from the D.C. Circuit compels the

conclusion that because the specific independent functions that OA performs are unlike the

functions of other EOP entities found to be agencies, OA is not an agency. See JA 351.18

While OA may have functions that differ from other EOP entities found to be agencies

subject to the FOIA, those differences do not transform OA into a non-agency. To the contrary,

those differences illustrate precisely why OA is an agency. All EOP non-agencies share, as a

bottom-line prerequisite, a sole function of advising and assisting the president under the

command of Soucie, as it is this function that precludes application of the FOIA to avoid any

constitutional concerns. OA, however, does not advise and assist the president, but instead

serves all EOP components but the president.

Case precedent confirms the district court’s fundamental error. This Circuit’s past

opinions on the agency status of EOP entities fall into two categories: (1) those that deal with

EOP entities serving both the president and other entities and agencies, raising the question of

which side of the agency line the entity falls; and (2) those that serve the president exclusively

and accordingly have no agency characteristics. OA, however, differs from all of these cases

18
The district court also appears to have operated under the belief that a single factor is
outcome-determinative of an EOP entity’s agency status, something this Circuit has repudiated.
See Armstrong III, 90 F.3d at 559, 560 (“It is not the number of functions delegated . . . but the
degree of the [entity’s] independence in discharging them, that matters.”). Instead, “the specific
evidence bearing upon [the agency] question varies with the entity in question.” Id. at 559.

25
because it does not advise and assist the president, much less do so to the exclusion of other,

independent functions.

The first category includes cases like Soucie, where the court evaluated the agency status

of the OST, an EOP entity that both advises the president and has the independent function of

evaluating federal programs. This independent function makes the OST “a separate

administrative entity” falling on the agency side of the line. 448 F.2d at 1075. But an analysis

of the OST’s independent functions was required by the fact that, as set forth in the OST’s

chartering documents, it also advises the president. Id. at 1073.19 OA does not share this

characteristic.

Following this approach, the D.C. Circuit in Pacific Legal Found. concluded that the

CEQ is also an agency because, like the OST, it has expanded responsibilities in addition to

advising the president. For the CEQ those responsibilities include overseeing activities of

federal agencies. 636 F.2d at 1262. As in Soucie, this evaluation of the CEQ’s independent

functions was necessitated by the fact that the CEQ also advises the president. Id. (“NEPA

directs the Council to assist and advise the President in preparing the President’s annual

Environmental Quality Report.”). Similarly, in Sierra Club v. Andrus, the D.C. Circuit

concluded that the Office of Management and Budget is an agency under both the

Administrative Procedure Act and the National Environmental Policy Act because of its “power

and function, over and above its role as presidential advisor . . .” 581 F.2d 895, 902 (D.C. Cir.

19
Under its authorizing reorganization plan, the OST was charged with both evaluating
federal agencies’ scientific research programs and advising and assisting the president with
respect to science and technology policies. Id., citing Reorganization Plan No. 2 of 1962, Pt. I, §
3.

26
1985). And in Meyer, the D.C. Circuit concluded that President Reagan’s Task Force on

Regulatory Relief was not an agency because the Task Force did not have the requisite “degree

of independence from the President,”and the Task Force members “were acting, in truth, just as

would senior White House staffers.” 981 F.2d at 1293, 1297 (emphasis in original). In the same

vein, the Court concluded in Armstrong III that the NSC is not an agency because it does not

have the requisite “degree of . . . independence in discharging” its functions; it exercises “no

substantial authority either to make or to implement policy.” 90 F.3d at 559, 561.

Cases in the second category, by contrast, include EOP entities that exclusively advise

the president. In Rushforth, for example, the court concluded that the Council of Economic

Advisers is not an agency because, unlike the CEQ, its only function is advising and assisting the

president. 762 F.2d at 1041. Likewise, in Sweetland v. Walters this Court held that the

Executive Residence is not an agency because “it is exclusively dedicated to assisting the

President in maintaining his home and carrying out his various ceremonial duties” and has no

“delegated independent authority” from either the president or Congress. 63 F.3d 852, 854

(D.C. Cir. 1995) (per curiam) (emphasis added).20

OA falls into neither of these categories because it does not assist the president in the

first instance and lacks both a functional and operational proximity to the president. The issue

then is not, as the district court erroneously believed, whether OA exercises sufficiently

substantial independent authority beyond advising and assisting the president to be properly

considered an agency. Rather, OA is an agency because it does not advise and assist the

20
Although the Executive Residence is not within the EOP, the D.C. Circuit considered it
analogous to an EOP entity because it “is responsible directly to the President and assists him by
performing whatever duties he may prescribe.” Id.

27
president.

B. Application Of Meyer’s Three-Part Agency Test Demonstrates That

OA Is An Agency.

The district court analyzed OA’s status from two perspectives to conclude that OA is not

an agency: first based on the factors identified in Soucie and second under Meyer’s three-factor

test. Whether viewed through the lens of the actual authority OA wields or informed by its

structure and operational closeness to the president, the touchstone is the same: the language

and intent of the FOIA to exclude from the definition of agency those entities of the EOP with a

sole function of advising and assisting the president. See Armstrong III, 90 F.3d at 558-59

(Meyer test “designed succinctly to capture the court’s prior learning on the subject whether a

unit within the [EOP] is an agency covered by the FOIA . . . the specific evidence bearing upon

that question varies with the entity in question.”). At bottom, the three-factor Meyer test is

simply a way to determine whether, under the totality of the circumstances, a particular entity

within the EOP is not an agency because it has “‘characteristics and functions . . . similar to

those of the President’s immediate personal staff.” Meyer, 981 F.2d at 1293.

The Meyer court identified three “interrelated factors that bear on the issue of agency

status”: (1) “how close operationally the group is to the President;” (2) “what the nature of its

delegation from the President is;” and (3) “whether it has a self-contained structure.” 981 F.2d at

1293. These factors are not “weighed equally” however and each factor “warrants consideration

insofar as it is illuminating in the particular case.” Armstrong III, 90 F.3d at 558.

Applying these factors, the district court properly concluded that OA has a self-contained

structure and is operationally close to the president, but held nonetheless that OA is not an

agency because of the nature of its delegated authority. JA 352-56. This conclusion is contrary

28
to the evidence of record and fails to give proper weight to the demonstrated lack of an “intimate

organizational and operating relationship between the President and the [OA],”21 fatal here to

OA’s claim of non-agency status.

First, that OA has a self-contained structure is not disputed. JA 352. With a staff of over

200 employees and consisting of seven discrete offices, each with its own defined functions,22

OA possesses all the structural attributes of an agency. As the Meyer court observed, “the

structure of the group is important in determining its relative independence from the President.

Function is crucial, but, like the architect Louis Sullivan, we believe that form follows function.”

981 F.2d at 1296-97.

Second, and most importantly, OA is not operationally proximate to the president. In

reaching this conclusion the district court properly discounted the fact that OA’s director carries

the title “Special Assistant to the President” and that OA, as originally chartered, was headed by

the president, reasoning that neither demonstrates the necessary “‘intimate organizational and

operating relationship’” between the president and OA. JA 353-54. But the court erred by

failing to give sufficient weight to this lack of proximity in evaluating OA’s agency status.

Simply stated, an entity that is not proximate to the president cannot have as its sole function

advising and assisting the president. In OA’s case, its complete lack of proximity to the

president coupled with its authorized mission -- providing administrative support to every EOP

entity except the president -- fatally undermine its claimed non-agency status.

21
Armstrong III, 90 F.3d at 560.
22
Id.

29
 The district court nevertheless concluded that the third Meyer factor -- the nature of OA’s

delegated authority -- dispositively establishes OA’s non-agency status. Central to the court’s

conclusion is the dissimilarity between OA’s delegated authority and that delegated to other EOP

components found by the D.C. Circuit to be agencies subject to the FOIA. JA 355. But, as

discussed supra, these are differences without a meaningful distinction because whatever else

OA does and does not do, at bottom OA does not advise and assist the president and instead

functions independently of the president.

Moreover, the district court’s misplaced emphasis on the administrative nature of OA’s

functions, carried to its logical conclusion, would negate the agency status of entities such as the

General Services Administration, which also offers administrative support “to help[] federal

agencies better serve the public . . .” GSA-Mission, Values, and Goals, available at

http://www.gsa.gov. This is not the teaching of Meyer and Armstrong III, 23 with their focus on

ascertaining whether a particular EOP entity has “‘characteristics and functions [] similar to

those of the president’s immediate personal staff.’” Armstrong III, 90 F.3d at 558, quoting

Meyer, 981 F.2d at 1293. By providing administrative support to EOP entities other than the

president, including EOP agencies, OA exhibits no characteristics and functions similar to those

of the president’s immediate personal staff.24

23
The district court pointed out that only these two cases “have substantively considered”
this factor in evaluating the agency status of an EOP component. JA 354-55.
24
Moreover, OA exercises substantial and independent responsibilities vis-a-vis other
EOP components. For example, OA’s chief financial officer “directs, manages, and provides
policy guidance and oversight of financial management activities and operations, including
procurement and travel support.” JA 46. Similarly, OA’s chief information officer provides
“leadership to the components that OA supports,” id., which include agency components. That

30
 Accordingly, whether evaluated solely under Soucie or under the more expansive

approach of Meyer, the result is the same: OA is an agency subject to the FOIA. The district

court erred by exalting form over substance to conclude that despite a 30-year history of

functioning consistently as an agency, OA should nevertheless be treated as a non-agency with

no obligation to respond further to CREW’s FOIA requests because it is unlike any other entity

this Circuit has found to be an agency. In so concluding, the court overlooked one critical and

outcome-determinative factor: OA, unlike all other EOP agency components, does not function

solely to advise and assist the president. This alone renders OA an agency subject to the FOIA.

II. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFF’S

COMPLAINT FOR LACK OF JURISDICTION

The district court erroneously relied on Rule 12(b)(1) to dismiss CREW’s complaint for

lack of subject-matter jurisdiction. Under D.C. Circuit precedent, the issue of whether an EOP

entity is an “agency” under the FOIA raises a question of whether a plaintiff has stated a claim

for relief under Rule 12(b)(6), not a question of the court’s jurisdiction. This plain error resulted

not only in improper dismissal of plaintiff’s complaint, but in plaintiff bearing a burden of proof

that properly belongs to the defendant.

In Sweetland v. Walters, this Court upheld a district court ruling that the Executive

Residence of the President is not an agency subject to the FOIA, affirming on the ground that

because the Executive Residence is not subject to the FOIA’s reporting requirements, plaintiff

had failed to state a claim for relief. 63 F.3d at 855. In reaching this conclusion, the D.C.

Circuit expressly repudiated the district court’s alternative ruling that it lacked subject-matter

OA provides this leadership within EOP rather than to external agencies is a distinction without
a meaningful difference, as it just as clearly reflects OA’s independence from the president.

31
jurisdiction as a result of the non-agency status of the Executive Residence because, as

established by cases like Haddon v. Walters, 43 F.3d 1488, 1490 (D.C. Cir. 1995), a “district

court has jurisdiction over substantive claims arising under laws of [the] United States.” Id.

(also citing Kleiman v. Dep’t of Energy, 956 F.2d 335, 339 (D.C. Cir. 1992)).25 Sweetland is

clear precedent that the question of whether a FOIA defendant is an “agency” goes to the merits,

not to subject-matter jurisdiction.

Here, although the district court acknowledged Sweetland,26 it did not follow its holding.

Instead, the court determined that the Supreme Court’s language in Kissinger v. Reporters

Comm. for Freedom of the Press, 445 U.S. 136 (1980), and Dep’t of Justice v. Tax Analysts, 492

U.S. 136, 142 (1989), which the district court characterized as treating the question of agency

status as a “jurisdictional” one, took precedence over Sweetland. JA at 337-38.

First, the district court was not free to simply disobey clear Circuit precedent such as

Sweetland. A lower court must “follow the case which directly controls, leaving [the higher

court] the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989). See also United States v. Torres, 115 F.3d 1033, 1036

(D.C. Cir. 1997) (“district judges, like panels of this court, are obligated to follow controlling

circuit precedent until either [this Court], sitting en banc, or the Supreme Court, overrule it.”).

25
In Kleiman, the Court held that where a plaintiff fails to establish one of the
prerequisites for application of the Privacy Act, the complaint fails to state a claim for relief but
does not fall outside the court’s jurisdiction. 956 F.2d at 339. This is because where “plaintiff’s
statement of his own cause of action shows that it is based upon federal law, such that it is a civil
action arising under the laws of the United States,” 28 U.S.C. § 1331 confers jurisdiction, even if
the claim fails on the merits. Id.
26
See JA at 338.

32
 In any case, there is no conflict here between Circuit and Supreme Court precedent, as

the district court misread both Kissinger and Tax Analysts. The Supreme Court and this Court

have often noted that “[j]urisdiction,’ it has been observed, ‘is a word of many, too many,

meanings.” Steel Co. v. Citizens for a Better Env’t, 523 U.S 83, 90 (1998), quoting United

States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996).

In Kissinger, the Supreme Court observed that “federal jurisdiction [under the FOIA] is

dependent upon a showing that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency

records.’” 445 U.S. at 150. See also Tax Analysts at 142 (“Unless each of these criteria is met,

a district court lacks jurisdiction to devise remedies.”). It is clear, however, from the face of the

Kissinger Court’s opinion that the three enumerated criteria (“improperly” “withheld” “agency

records”) are the three showings necessary to establish a violation of the FOIA for which a court

can fashion a remedy, not the showings necessary for the court to entertain the action in the first

place. Just as clearly, the Court’s reference in Tax Analysts to “jurisdiction to devise remedies”

is not, properly understood, a reference to subject-matter jurisdiction over FOIA claims, but

rather to the court’s ability to award a plaintiff relief for its claims.

Moreover, as this Circuit noted in Armstrong II, the Kissinger Court “assumed, without

deciding the issue, that the NSC is a FOIA agency,” 1 F.3d at 1296, further undermining the

notion that “agency” status is jurisdictional, as courts are duty-bound to address matters of

subject-matter jurisdiction, sua sponte if need be. That is why when this Court has decided --

without assuming -- that a FOIA defendant is or is not an agency, the Court has always treated

the issue as a matter of entitlement to relief, not subject-matter jurisdiction. See Soucie, 448

F.2d 1067; Meyer, 981 F.2d 1288; Pacific Legal Found., 636 F.2d 1259, Sierra Club v. Andrus,

33
581 F.2d 895; Rushforth, 762 F.2d 1038; Armstrong III, 90 F.3d 553.

That the government framed this issue as one of subject-matter jurisdiction is not

surprising, given the tactical advantages this approach yielded. Through the vehicle of Rule

12(b)(1), the defendant was able to force the plaintiff to provide actual proof of the elements of a

violation at the pleading stage, before plaintiff was permitted full discovery and the procedural

protections of summary judgment. In addition to tying plaintiff’s hands in this way, the Rule

12(b)(1) procedures allowed the defendant to rely more freely on extra-record materials.

Finally, the court’s erroneous treatment of the agency issue as raising a jurisdictional

question subject to dismissal under rule 12(b)(1), rather than a failure to state a claim under Rule

12(b)(6), enormously impacted the plaintiff and the outcome of the motion. Contrary to Tax

Analysts, the district court’s approach placed on plaintiff the burden to prove beyond a

preponderance of the evidence that the requested records are agency records in order to establish

subject-matter jurisdiction. But Congress and the Supreme Court plainly intended that the

agency defendant in a FOIA action demonstrate that the requested records are not agency

records. Specifically, under 5 U.S.C. § 552(a)(4)(B), “[t]he burden is on the agency to

demonstrate, not the requester to disprove, that the materials sought are not “agency records’ or

have not been ‘improperly’ ‘withheld.’” Tax Analysts, 492 U.S. at 142 n.3 (1989), citing S. Rep.

No. 813, 89th Cong., 2d Sess., 8 (1965) (“Placing the burden of proof upon the agency puts the

task of ‘justifying the withholding on the only party able to explain it.”); H.R. Rep. No. 1497,

89th Cong., 2d Sess., 9 (1966).

34
 III. THE DISTRICT COURT IMPROPERLY LIMITED DISCOVERY TO
JURISDICTIONAL PROOF AND DENIED PLAINTIFF PATENTLY
RELEVANT DISCOVERY ON DEFENDANT’S AGENCY STATUS

Once the district court erroneously deemed agency status a matter of jurisdiction and put

plaintiff to its jurisdictional proof, the court compounded its error by granting OA almost every

discovery objection it made, thereby denying plaintiff the vast majority of its requested

discovery. As a result, discovery became a one-way street, with OA -- the party with unilateral

access to all relevant facts -- allowed to put on the record whatever evidence it wanted, while

CREW met roadblocks on every avenue of inquiry. The denial of any meaningful opportunity

for CREW to develop the record, based on theories of relevance that were either faulty or

unexplained, is an abuse of discretion, resulting in a record consisting mainly of evidence

handpicked by the defendant.

Plaintiff was hamstrung from the start by the district court’s ruling that discovery was

jurisdictional and thus had to be narrower than normal merits discovery. See JA 104.27 Given

that jurisdictional discovery is allowed in cases where the court may well not have the power

over the subject matter or the person, courts have always limited the scope of such discovery.

See, e.g., GTE New Media Servs. v. BellSouth Corp., 199 F.3d 1343, 1352 (D.C. Cir. 2000)

(describing jurisdictional discovery as “circumscribed”); El-Fadl v. Central Bank of Jordan, 75

F.3d 668, 676 (D.C. Cir. 1996) (jurisdictional discovery must be “precisely focused”); Intelsat

27
The district court seized every opportunity to remind the parties that discovery was as
limited as could be. See, e.g., JA 104 (court order describing discovery as “very limited” and
“subject to strict parameters”) (emphasis in original); id. at 106-07 (referring to “very limited”
discovery) (emphasis in original); id. at 107 (“the Court shall significantly restrict the scope of
discovery that CREW may pursue”); JA 138-39 (subsequent court order again referring to “the
very limited nature of the discovery”); JA 323 (explaining that court had allowed parties to
conduct “very limited discovery”).

35
Global Sales & Mktg. v. Cmty of Yugoslav Posts, Tels. & Tels., 534 F. Supp. 2d 32, 36 (D.D.C.

2008). With jurisdictional discovery, a plaintiff is permitted to inquire only into specific topics

for which a “detailed showing” has been made,28 establishing a presumption against discovery

that goes against the norm of discovery otherwise permitted under the Rules.

Beyond limiting discovery to the so-called jurisdictional issue, an error of law to be

reviewed de novo,29 the district court ruled nearly every mode of gathering evidence out of

bounds on fundamental issues such as what functions OA has served and how its has served

them. For example, the district court denied plaintiff discovery into OA’s past functioning as a

FOIA agency. JA 137-38. Even on the district court’s theory that this does not render OA an

agency as a matter of law, this information is still relevant as it goes to what functions OA did

and does perform and may shed light on OA’s reasons for believing that because it functioned as

an agency it was required to make agency records available to the public under the FOIA.

To make matters worse, OA seized on and expanded this limitation, objecting throughout

the deposition of then-OA Director Alan Swendiman to any question that touched not only on

OA’s past compliance with the FOIA and other statutes, but on many other aspects of OA’s past

conduct. See, e.g., JA 285, 286; Plaintiff’s Motion to Compel (Dkt #37). CREW was further

hamstrung by the fact that it was allowed to depose only Mr. Swendiman (see JA 138), who

professed to know nothing of events that pre-dated his 2006 arrival at OA, and could speak to

very little that did happen while he was OA’s director. JA 280, 283, 284, 286-292, 294-95, 297,

28
Medical Solutions Inc. v. C Change Surgical LLC, 468 F. Supp. 2d 130, 135 (D.D.C.
2006).
29
See Lee v. Dep’t of Justice, 413 F.3d 53, 56-59 (D.C. Cir. 2005).

36
301, 303. In essence, CREW was tasked with proving that an object is a duck without being able

to inquire how the thing had looked, walked, talked, or acted in the past; the only real mode of

inquiry the district court left on the table was the direct question: “Are you a duck?”

But while the district court at least articulated a basis for making OA’s past perceptions

of its own agency functions off-limits, it gave no explanation for its prohibition on CREW

asking any questions or getting any documents about OA’s rule in coordinating and regulating

activities among other EOP components, including those that have been ruled “agencies” by the

courts. See JA 137, 139 (Order denying, inter alia, Plaintiff’s Document Request Nos. 3, 4, 8).

The district court cited no basis in law, fact, or logic for its apparent conclusion that OA’s

authority over or responsibility to other EOP agencies, including its responsibility for all aspects

of devising and implementing federal record keeping policy and compliance within the entire

Presidential Records Act and Federal Records Act complex of the White House,30 is irrelevant to

whether OA is an agency. The district court merely waved away the issue, without explaining

why agencies within the EOP are not executive branch agencies for the purposes of the Soucie

and Meyer inquiries. See JA at 341 n.5.

In a further fundamental error of law that severely restricted the scope of discovery, the

district court ruled that CREW could not inquire into facts that, in the district court’s view, went

to factors of the Soucie and Meyer tests that were already established or conceded. See, e.g., JA

136-37. For example, CREW was not allowed to delve into the organization and structure of OA

and its role within the EOP, at the present day or over time, because OA had acknowledged that

it had the kind of self-contained structure referenced in Soucie. JA 137. But OA’s structure and

30
See JA 236-37.

37
its place within the EOP’s structure go to other aspects of the Soucie and Meyer tests, such as the

degree of independence OA has from the president and other EOP agencies. Moreover, as this

Circuit has recognized, different factors bear different weight, depending on the facts of each

individual case. Armstrong III, 90 F.3d at 560. Further, CREW was not even allowed to

examine witnesses whose declaration testimony was admitted and relied upon by the court, such

as OA General Counsel M. Elizabeth Medaglia. JA 327 n.1, 333.

The Soucie and Meyer elements are interrelated and overlapping, with many facts

relevant to more than one element of each test and all of these facts, taken as a whole, determine

whether an EOP entity meets the definition of “agency” under the totality of the circumstances.

The district court instead treated each as an independent, stand-alone element on a checklist,

finding that if one element of one test had been established, there could be no discovery of any

facts related to that element. As a result, CREW was denied discovery of patently relevant facts

and OA was again allowed to meter the scope of discovery, conceding minor aspects of each test

to foreclose access to broader, yet clearly relevant swathes of information.

Even the district court admitted that the record it had permitted was insufficient for the

task at hand. For example, it held that the record “fails to substantiate” and “simply does not

demonstrate” a conclusive answer on the “significant” issue of proximity to the president, such

that this issue must, in the court’s view, be deemed “in equipoise.” JA 353-54. Had the district

court permitted any discovery on OA’s proximity to the president -- a fundamental component of

non-agency status -- the record might have been clearer on this critical issue, which weights

heavily in CREW’s favor.

38
 CREW was also denied discovery on what emerged as a basic theme in the district

court’s dismissal of CREW’s complaint: that OA is not an agency because it only provides

administrative services within the EOP. The court neither permitted any discovery into the

services OA provides within the EOP, nor explained why EOP agencies are any less a part of the

executive branch. See JA 139. In framing discovery as a jurisdictional issue, the court denied

CREW necessary and relevant discovery and then dismissed CREW’s complaint based on its

finding that CREW had failed to carry its burden of proving OA is an agency. “To subject

plaintiff[] to a more stringent review, as the District Court did here, while at the same time

denying [plaintiff’s] discovery requests for the very materials that might enable [it] to satisfy that

more stringent review, amounts to an abuse of discretion.” Wilderness Soc’y v. Griles, 824 F.2d

4, 20 (D.C. Cir. 1987).

CONCLUSION

For the foregoing reasons, this Court should reverse the district court’s order of June 16,

2008, and remand the case for further proceedings.

Respectfully submitted,

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

August 22, 2008 Attorneys for Plaintiff-Appellant

39
 CERTIFICATE OF COMPLIANCE

This Brief of Appellant has been prepared using:

Corel WordPerfect 11;

Times New Roman;

12 Point type Space.

EXCLUSIVE of the Table of Contents; Table of Authorities; Glossary, Certificate of

Filing and Service; and this Certificate of Compliance, this brief contains 11,989 words.

I understand that a material misrepresentation can result in the Court’s striking the brief

and imposing sanctions. If the Court so directs, I will provide an electronic version of the brief

and/or a copy of the word or line printout.

Dated: August 22, 2008

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

Attorneys for Plaintiff-Appellant

 CERTIFICATE OF FILING AND SERVICE

I hereby certify that on August 22, 2008, I filed with the Clerk's Office of the United

States Court of Appeals for the District of Columbia Circuit, via hand-delivery, the required

copies of the foregoing Brief of Appellant and Joint Appendix, and further certify that I served,

via U.S. Mail, postage prepaid, the required copies of the same to the following:

Mark B. Stern
Mark R. Freeman
Michael S. Raab
U.S. Department of Justice
950 Pennsylvania Avenue, Room 7531
Washington, D.C. 20530

The necessary filing and service upon counsel were performed in accordance with the

instructions given to me by counsel in this case.

____________________________________
THE LEX GROUPDC
1750 K Street, NW
Suite 475
Washington, DC 20006
(202) 955-0001