MEMORANDUM IN SUPPORT OF DEFENDANT’S · PDF filePlaintiff, v. NATIONAL SECURITY COUNCIL, Defendant. ))))) Case No. 1:13-cv-00948-ENV-MDG . Date Served: May 10, 2013 . MEMORANDUM

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

MAIN STREET LEGAL SERVICES, INC., Plaintiff, v. NATIONAL SECURITY COUNCIL, Defendant.

)))))))))))

Case No. 1:13-cv-00948-ENV-MDG Date Served: May 10, 2013

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Case 1:13-cv-00948-ENV-MDG Document 14-1 Filed 06/07/13 Page 1 of 18 PageID #: 40

TABLE OF CONTENTS

PAGE INTRODUCTION .................................................................................................................. 1

BACKGROUND ..................................................................................................................... 1

1. Procedural Background ................................................................................................... 1

2. The National Security Council ........................................................................................ 2

ARGUMENT .......................................................................................................................... 3

I. Standard of review ........................................................................................................ 3

II. The NSC is not an “agency” for purposes of FOIA. ..................................................... 4

A. Legal principles ........................................................................................................... 4

B. Application of the substantial independent authority test to the NSC ........................ 8

CONCLUSION ..................................................................................................................... 12

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TABLE OF AUTHORITIES

CASES PAGE(S)

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

Armstrong v. Exec. Office of the President, Office of Admin., 1 F.3d 1274 (D.C. Cir. 1993) ................................................................................................ 8

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................................. 3

Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) .............................................................................................. 6

ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87 (2d Cir. 2007) ................................................................................................... 4

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................................. 3

Cheney v. Dist. Ct. for Dist. of Columbia, 542 U.S. 367 (2004) ............................................................................................................. 6

Citizens for Responsibility & Ethics in Wash. v. Office of Admin., (CREW), 566 F.3d 219 (D.C. Cir. 2009) .................................................................. 3, 4, 5, 7

Cont’l Stock Transfer & Trust Co. v. SEC, 566 F.2d 373 (2d Cir. 1977) ................................................................................................. 6 Gaylor v. U.S. Dep't of Justice,

2006 WL 1644681 (D.N.H. June 14, 2006) ......................................................................... 6 Gonzales & Gonzales Bonds & Ins. Agency Inc. v. U.S. Dep't of Homeland Sec.,

2012 WL 6680228 (N.D. Cal. Dec. 21, 2012) ...................................................................... 6 In re Scott,

709 F.2d 717 (D.C. Cir. 1983) .............................................................................................. 6 Kissinger v. Reporters Comm. for Freedom of the Press,

445 U.S. 136 (1980) .................................................................................................... passim Matlack, Inc. v. EPA,

868 F. Supp. 627 (D. Del. 1994) .......................................................................................... 6 Meyer v. Bush,

981 F.2d 1288 (D.C. Cir. 1993) ........................................................................................ 4, 7 Nat'l Sec. Archive v. Archivist of the United States,

909 F.2d 541 (D.C. Cir. 1990) .............................................................................................. 7 North Haven Bd. of Educ. v. Bell,

456 U.S. 512 (1982) ............................................................................................................. 9 Our Children's Earth Found. v. U.S. EPA,

2008 WL 3181583 (N.D. Cal. Aug. 4, 2008) ....................................................................... 6

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Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259 (D.C. Cir. 1980) ............................................................................................ 7

Rushforth v. Council of Econ. Advisers, 762 F.2d 1038 (D.C. Cir. 1985) ................................................................................. 4,5, 7, 8

Sierra Club v. Andrus, 581 F.2d 895 (D.C. Cir. 1978), ............................................................................................. 7

Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971) .................................................................................... 4, 5, 8

Sweetland v. Walters, 60 F.3d 852 (D.C. Cir. 1995) .................................................................................... 3, 4, 5, 7

Tigue v. U.S. Dep't of Justice, 312 F.3d 70 (2d Cir. 2002) ................................................................................................... 7

United States v. Nixon, 418 U.S. 683 (1974) ............................................................................................................. 6

Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104 (2d Cir. 2008) ................................................................................................. 3

Wang v. Exec. Office of the President, 2008 WL 180189 (D.D.C. Jan. 18, 2008) ............................................................................. 3

STATUTES

5 U.S.C. § 552 .......................................................................................................................... 1 5 U.S.C. § 552(a) ...................................................................................................................... 4 5 U.S.C. § 552(a)(4)(B) ............................................................................................................ 3 5 U.S.C. § 552(f)(1) ................................................................................................................. 4 50 U.S.C. § 402 .................................................................................................................. 2, 10 50 U.S.C. § 403 ...................................................................................................................... 11 50 U.S.C. § 403-1 ................................................................................................................... 11 50 U.S.C. § 403-3 ................................................................................................................... 11 50 U.S.C. § 403-4 ................................................................................................................... 11

OTHER LEGISLATIVE MATERIALS

S. Rep. No. 838, 81st Cong., 1st Sess. 2 (1949) ....................................................................... 2 H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess. 15 (1974) ...................................................... 4 H.R. Rep. No. 876, 93d Cong., 2d Sess. 8 (1974) .................................................................... 5

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RULES

Fed. R. Civ. P. 12(b)(6) ............................................................................................................ 3

EXECUTIVE MATERIALS

Memorandum of Walter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel to Alan J. Kreczko, Special Assistant to the President, Sept. 20, 1993 .................. 9

Exec. Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009) ......................................................... 11 Presidential Policy Directive-1 (Feb. 13, 2009) ..................................................................... 12

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INTRODUCTION

Plaintiff Main Street Legal Services, Inc. seeks an order from this Court compelling the

President’s National Security Council (“NSC” or the “Council”) to respond to its request for

documents pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The

Council, established by statute and presidential directive as a Cabinet-level group of officials

from various agencies and departments and headed by the President, is in the Executive

Office of the President and provides advice and assistance to the President in carrying out

his core constitutional responsibility over national security and foreign affairs, but wields no

substantial authority independent of the President. Under principles established by the

Supreme Court interpreting congressional intent, and further developed in a series of

decisions in the D.C. Circuit, entities in the Executive Office of the President that are

functionally equivalent to the President’s personal staff do not fall within the definition of

“agency” for purposes of FOIA. The NSC plainly constitutes such an entity, and the D.C.

Circuit has expressly reached that conclusion and held that NSC is not an “agency” under

FOIA. See Armstrong v. Exec. Office of the President, 90 F.3d 553, 565 (D.C. Cir. 1996).

No court has held otherwise, and this Court should decline plaintiff’s invitation to become

the first. Plaintiff’s Complaint should be dismissed for failure to state a claim upon which

relief may be granted.

BACKGROUND

1. Procedural Background

Plaintiff submitted a letter dated November 27, 2012 to defendant NSC requesting,

pursuant to FOIA, “[a]ll records related to the killing and attempted killing by drone strike

of U.S. citizens and foreign nationals” and “[a]ll National Security Council meeting minutes

taken in the year 2011.” See FOIA Request, attached as Ex. A; Compl. ¶¶ 1, 6. NSC

responded to the request by letter dated December 14, 2012, stating that “[a]s an

organization in the Executive Office of the President that advises and assists the President,

the National Security Council is not subject to the Freedom of Information Act.” See NSC

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Response, attached as Ex. B; Compl. ¶ 7. Accordingly, the NSC did not provide plaintiff

with any information regarding a process by which to appeal that determination, and it did

not provide any other response to plaintiff’s purported FOIA request. Plaintiff filed the

Complaint in this case on February 21, 2013, alleging that the NSC violated FOIA by failing

to “promptly provide access to the records sought by Plaintiff’s request.” Compl. ¶ 10.

2. The National Security Council

Congress created the NSC in the National Security Act of 1947, 61 Stat. 495 (codified at

50 U.S.C. § 402), and provided that its function “shall be to advise the President with

respect to the integration of domestic, foreign and military policies relating to the national

security so as to enable the military services and the other departments and agencies of the

Government to cooperate more effectively in matters involving the national security.” 50

U.S.C. § 402(a).1 “[S]ubject to the direction of the President,” the NSC also possesses

statutory authority to “assess and appraise the objectives, commitments and risks of the

United States in relation to our actual and potential military power, in the interests of

national security, for the purpose of making recommendations to the President,” id.

§ 402(b)(1), and “to consider policies on matters of common interest to the departments and

agencies of the Government concerned with national security, and to make

recommendations to the President in connection therewith,” id. § 402(b)(2). The President

presides over the NSC, see id. § 402(a), and retains the ultimate authority to direct the NSC

to perform other functions, id. § 402(b). The NSC is also supported by a National Security

Staff, see id. § 402(c), under the direction of the President’s National Security Advisor.2

1 In Reorganization Plan No. 4 of 1949, the NSC was formally placed within the Executive Office of the President. See S. Rep. No. 838, 81st Cong., 1st Sess. 2 (1949). 2 In early 2009, the President integrated the White House staff previously supporting the National Security Council and the Homeland Security Council into one single staff, newly designated the National Security Staff, under the direction of the National Security Advisor. See http://www.whitehouse.gov/the_press_office/Statement-by-the-President-on-the-White-House-Organization-for-Homeland-Security-and-Counterterrorism.

2


http://www.whitehouse.gov/the_press_office/Statement-by-the-President-on-the-White-House-Organization-for-Homeland-Security-and-Counterterrorism

http://www.whitehouse.gov/the_press_office/Statement-by-the-President-on-the-White-House-Organization-for-Homeland-Security-and-Counterterrorism

ARGUMENT

THE NATIONAL SECURITY COUNCIL IS NOT AN “AGENCY” SUBJECT TO FOIA

Plaintiff’s suit seeks to have this Court compel the NSC to respond to its FOIA request.

But the NSC is an advisory body that the President himself chairs and that exists solely to

advise and assist him in carrying out his constitutional national security duties, and wields

no substantial authority independent of the President. Under Supreme Court precedent, such

entities are not included within FOIA’s definition of “agency.” Indeed, the D.C. Circuit has

expressly concluded that the NSC is not subject to FOIA, and no other court has expressly

considered the issue and held to the contrary. Accordingly, applying the analysis clearly set

forth in those decisions, this Court should dismiss plaintiff’s Complaint under Fed. R. Civ.

P. 12(b)(6) for failure to state a claim upon which relief can be granted.3

I. Standard of review

In deciding a motion to dismiss under Rule 12(b)(6), the Court should “accept as true all

factual statements alleged in the complaint and draw all reasonable inferences in favor of the

non-moving party.” Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d

104, 115 (2d Cir. 2008) (citation omitted). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court may also consider “any written

3 In dismissing lawsuits against agencies that are not subject to FOIA, the D.C. Circuit has generally relied on Rule 12(b)(6) and concluded that causes of action based on FOIA requests submitted to agencies that are not subject to FOIA should be dismissed for failure to state a claim. See, e.g., Citizens for Responsibility & Ethics in Wash. v. Office of Admin. (CREW), 566 F.3d 219, 225 (D.C. Cir. 2009); Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1995) (per curiam). At least one district court decision has suggested that dismissal on this ground should be pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. See Wang v. Exec. Office of the President, 2008 WL 180189 (D.D.C. Jan. 18, 2008); see also Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (“Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) ‘improperly”; (2) “withheld”; (3) “agency records.”). To the extent the Court concludes that the issues discussed herein implicate the Court’s subject matter jurisdiction, NSC alternatively requests that the Court dismiss the Complaint for lack of subject matter jurisdiction.

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instrument attached to the complaint, statements or documents incorporated into the

complaint by reference . . . and documents possessed by or known to the plaintiff and upon

which it relied in bringing the suit” on a motion to dismiss. ATSI Commc'ns, Inc. v. Shaar

Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted).

II. The NSC is not an “agency” for purposes of FOIA.

A. Legal principles

FOIA by its terms applies only to “agenc[ies].” 5 U.S.C. § 552(a). Accordingly, an entity

that is not an “agency” under FOIA is not required to respond to FOIA requests and thus is

not subject to suit for failure to comply with FOIA’s disclosure requirements. See Citizens

for Responsibility & Ethics in Wash. v. Office of Admin. (CREW), 566 F.3d 219, 222, 225

(D.C. Cir. 2009); Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1995) (per curiam).

While FOIA’s text provides that an “agency” includes “any executive department . . . or

other establishment in the executive branch of the Government (including the Executive

Office of the President),” 5 U.S.C. § 552(f)(1), the Supreme Court has held that not all

entities within the Executive Office of the President fall within FOIA’s scope. See Kissinger

v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980). Relying on the

Conference Report accompanying the 1974 FOIA amendments, the Supreme Court held that

Congress did not intend FOIA to apply to “units in the Executive Office whose sole function

is to advise and assist the President.” Id. (quoting H.R. Conf. Rep. No. 1380, 93d Cong., 2d

Sess. 15 (1974)). In particular, the Conference Report specified that “with respect to the

meaning of the term ‘Executive Office of the President’ the conferees intend the result

reached in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971).” See Rushforth v. Council of

Econ. Advisers, 762 F.2d 1038, 1041 (D.C. Cir. 1985) (quoting H.R. Conf. Rep. 93-1380 at

14); see also Meyer v. Bush, 981 F.2d 1288, 1291 (D.C. Cir. 1993). Specifically, under the

relevant case law discussed below, the controlling question when determining whether an

entity in the Executive Office of the President is included within FOIA’s definition of

4


“agency” is whether “the entity in question ‘wield[s] substantial authority independently of

the President.’” CREW, 566 F.3d at 222 (quoting Sweetland, 60 F.3d at 854).4

In Soucie, the D.C. Circuit considered whether the Office of Science and Technology,

newly established in the Executive Office of the President, was an “agency” subject to

FOIA. See 448 F.2d at 1073. Construing the Administrative Procedure Act’s definition of

“agency,” which was simply incorporated by reference as the applicable definition under

FOIA prior to the 1974 FOIA amendments, the Soucie court held that “any administrative

unit with substantial independent authority in the exercise of specific functions” qualified as

an agency subject to FOIA. Id. On the other hand, the court recognized, an entity in the

Executive Office of the President might be considered equivalent to the President’s staff,

and thus not subject to FOIA, if its “sole function were to advise and assist the President.”

Id. at 1075. As to the status of the Office of Science and Technology, the court observed that

the Office had inherited from the National Science Foundation the roles of evaluating

federal scientific research programs, initiating and funding research projects, and awarding

scholarships, in addition to its role in advising the President; thus, the court concluded that

the Office exercised substantial independent authority and therefore qualified as an “agency”

under FOIA. Id. at 1075; see CREW, 566 F.3d at 223.

Importantly, Soucie also recognized that separation of powers concerns formed an

important backdrop to the interpretation of FOIA’s application to entities within the

Executive Office of the President. See 448 F.2d at 1071 & n.9; id. at 1080–84 (Wilkey, J.,

concurring). The constitutional dimension of the President’s right to confidential

4 In summarizing one argument made by the FOIA requester in that case, the Kissinger Court also made reference to a House report that expressed a slightly different understanding of the amendments and specifying particular entities, including the NSC, that the House understood the new definition of “agency” to encompass. See 445 U.S. at 156 (citing H.R. Rep. No. 876, 93d Cong., 2d Sess. 8 (1974)). But Kissinger plainly relied on the Conference Report for its own interpretation of “Executive Office.” See id. at 971. And as explained in Rushforth, the Conference Report postdated the House Report and rejected the list of specified entities in favor of the judicially formulated test articulated in Soucie; thus, it is the intent expressed in the Conference Report that controls courts’ interpretation of FOIA. See Rushforth, 762 F.3d at 1040–41.

5


communications is well settled. See Cheney v. Dist. Ct. for Dist. of Columbia, 542 U.S. 367,

381–82 (2004); United States v. Nixon, 418 U.S. 683, 705–06 (1974). The potential for

interference with the President’s core constitutional functions by subjecting purely advisory

entities to FOIA is evident. Simply knowing that such communications could be subjected

to disclosure under FOIA could cause members of the President’s NSC to “temper candor

with a concern for appearances and for their own interests to the detriment of the

decisionmaking process.” Nixon, 418 U.S. at 705. The D.C. Circuit has noted that Congress

likely had such constitutional concerns in mind when exempting entities within the

Executive Office of the President with the sole function of advising and assisting the

President, as such an exemption “may be constitutionally required to protect the President’s

executive powers.” See Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898,

909–10 (D.C. Cir. 1993).5

Although the Second Circuit has yet to apply Kissinger or Soucie to determine whether

any particular entity within the Executive Office of the President qualifies as a FOIA

agency, the D.C. Circuit has done so in multiple cases that demonstrate the proper analysis

of this issue (and, as explained below, the result the Court should reach in this case).6 See

5 These concerns are brought sharply into focus by the request in this case. Plaintiff seeks from the NSC, the President’s cabinet-level advisory group that aids him in carrying out his core constitutional responsibilities of protecting national security and conducting foreign affairs, “[a]ll National Security Council meeting minutes taken in the year 2011.” See Ex. A at 1. Requiring the NSC to even respond to such a FOIA request—by searching, processing responsive records for exemptions, and subjecting to de novo judicial review its withholding determinations—would represent a substantial intrusion on the President’s fulfillment of his core constitutional functions with the assistance of his closest advisors. 6 While not binding, this Court may appropriately afford particular weight to FOIA cases arising out of the D.C. Circuit, which adjudicates the majority of FOIA cases. Indeed, courts have recognized that Congress intentionally selected the District of Columbia as an “all-purpose forum in FOIA cases” due to the D.C. courts’ “‘substantial expertise’ in working with the FOIA.” In re Scott, 709 F.2d 717, 720 (D.C. Cir. 1983) (per curiam) (quoting S. Rep. No. 854, 93d Cong., 2d Sess. 12–13 (1974)); see Cont’l Stock Transfer & Trust Co. v. SEC, 566 F.2d 373, 375 (2d Cir. 1977); Gonzales & Gonzales Bonds & Ins. Agency Inc. v. U.S. Dep’t of Homeland Sec., 2012 WL 6680228, at *5 n.9 (N.D. Cal. Dec. 21, 2012); Our Children’s Earth Found. v. U.S. EPA, 2008 WL 3181583, at *6 (N.D. Cal. Aug. 4, 2008); Gaylor v. U.S. Dep’t of Justice, 2006 WL 1644681, at *1 (D.N.H. June 14, 2006); Matlack, Inc. v. EPA, 868 F. Supp. 627, 630 (D. Del. 1994).

6


generally CREW, 566 F.3d at 222–23 (summarizing cases). In Meyer v. Bush, the D.C.

Circuit explained that three factors are relevant to the analysis set forth by Soucie and its

progeny: “how close operationally the group is to the President, what the nature of its

delegation from the President is, and whether it has a self-contained structure.” Meyer, 981

F.2d at 1293. Applying these factors, the Meyer court concluded that President Reagan’s

Task Force on Regulatory Relief existed solely to advise and assist the President and did not

exercise substantial independent authority, and that it therefore was not an “agency” under

FOIA. Id. at 1297–98; see also Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 77 (2d Cir. 2002)

(Sotomayor, J.) (citing Meyer as supporting the uncontested proposition that Webster

Commission, which was organized to propose reforms to IRS’s criminal investigations

division, was not a FOIA agency).

For similar reasons, the D.C. Circuit has concluded that the Council for Economic

Affairs, see Rushforth, 762 F.2d at 1042; the White House Counsel’s Office, Nat’l Sec.

Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C. Cir. 1990); the Executive

Residence Staff, see Sweetland, 60 F.3d at 854; and the Office of Administration, see

CREW, 566 F.3d at 224, all fall outside the definition of a FOIA agency under the Soucie

test and incorporated by Congress into FOIA’s definition of “agency.” The D.C. Circuit

concluded that each of those entities “lacks the substantial independent authority we have

required to find an agency covered by FOIA.” Id. at 223. On the other hand, the D.C. Circuit

has concluded that, in addition to the Office of Science and Technology in Soucie, the Office

of Management and Budget, see Sierra Club v. Andrus, 581 F.2d 895, 902 (D.C. Cir. 1978),

rev’d on other grounds, 442 U.S. 347 (1979), and the Council on Environmental Quality,

see Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1262 (D.C. Cir. 1980),

qualify as FOIA agencies because they “wield[] substantial authority independently of the

President,” Sweetland, 60 F.3d at 854. See Andrus, 581 F.2d at 902 (noting OMB’s statutory

duty to prepare the budget and the requirement that its leadership be confirmed by the

Senate); Pac. Legal Found., 636 F.2d at 1262 (noting that the Council on Environmental

7


Quality possesses the authority to coordinate federal programs and issue guidelines and

regulations that agencies must follow in the interest of protecting the environment).

Finally, and of course most directly pertinent to this case, the D.C. Circuit applied these

principles in Armstrong v. Executive Office of the President and concluded in a thorough and

well-reasoned decision that the NSC is not an “agency” for purposes of FOIA because it

exists solely to advise and assist the President and does not exercise substantial independent

authority. See 90 F.3d 553. That decision, discussed in detail below, both provides the

analysis this Court should apply and demonstrates the result this Court should reach.

B. Application of the substantial independent authority test to the NSC

As the “President’s principal forum for considering national security and foreign policy

matters with his senior national security advisors and cabinet officials,” see

http://www.whitehouse.gov/administration/eop/nsc, the NSC represents a clear-cut example

of an entity that has as its sole function the provision of advice and assistance to the

President and thus falls outside the scope of FOIA’s disclosure requirements. Applying

controlling principles set forth in Kissinger,7 Soucie, and subsequent cases, the D.C. Circuit

reached precisely that conclusion in Armstrong, 90 F.3d at 565. No other court has squarely

7 As noted above, see supra note 4, the Supreme Court in Kissinger quoted language from a House Report that specifically listed the NSC as among the entities in the Executive Office of the President that the House understood the1974 FOIA amendments to include within FOIA’s definition of “agency.” See 445 U.S. at 156. But Kissinger did not hold that NSC was subject to FOIA, and courts have thus uniformly recognized that the Conference Report’s incorporation of the Soucie test should control the interpretation of the word “agency.” See Rushforth, 762 F.3d at 1040–41; cf. id. at 1043 (concluding that the Council of Economic Advisors is not an “agency” under FOIA despite being listed alongside the NSC in the same House Report). Furthermore, a prior decision in the same Armstrong litigation recognized that the NSC and prior courts had at one time appeared to assume that NSC was an “agency” under FOIA (perhaps in reliance on a 1978 OLC opinion that was later withdrawn, see infra note 9; Armstrong, 90 F.3d at 565–66), but that “the issue ha[d] never been definitively resolved.” See Armstrong v. Exec. Office of the President, Office of Admin., 1 F.3d 1274, 1296 (D.C. Cir. 1993). The D.C. Circuit’s 1996 Armstrong decision thus appears to be the only case that has “definitely resolved” the issue.

8


http://www.whitehouse.gov/administration/eop/nsc

addressed the issue and reached a contrary conclusion.8 This Court should follow

Armstrong’s analysis9 and dismiss this lawsuit for failure to state a claim.

The Armstrong court applied the three factors set forth in the Meyer decision, which it

recited as “(1) how close operationally the group is to the President, (2) whether it has a self-

contained structure, and (3) the nature of its delegated authority.” 90 F.3d at 558 (internal

quotation marks, alterations, and citation omitted)). The court further stressed that those

factors “are not necessarily to be weighed equally; rather, each factor warrants consideration

insofar as it is illuminating in the particular case.” Id. For instance, Armstrong indicated that

the second factor, regarding a self-contained structure, essentially amounted to a threshold

consideration: “Whether an entity without a self-contained structure could ever qualify as

an agency that exercises substantial independent authority seems very doubtful.” Id. at 559.

Nevertheless, “if the operating relationship between the NSC and the President is as close as

the Government maintains, then a hierarchical structure, large staff, and separate budget will

not by themselves subject the NSC to the FOIA; Armstrong will have to show that the NSC

exercises significant independent authority in order to qualify it as an agency.” Id.

As to the threshold second factor, whether the NSC as a descriptive matter “has a

structure sufficiently self-contained that the entity could exercise substantial independent

authority,” Armstrong concluded that NSC did have a self-contained structure in view of its

organization chart and separate budget. See 90 F.3d at 559–60 (emphasis added). But

8 Nor has Congress acted to amend the definition of “agency” in FOIA following any of the D.C. Circuit’s decisions applying the Soucie test, including Armstrong, though it has amended other provisions of FOIA. See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 535 (1982) (“Where an agency’s statutory construction has been fully brought to the attention of the public and the Congress, and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned.” (internal quotation marks and citation omitted)). 9 As Armstrong observed, the Office of Legal Counsel of the Department of Justice has also concluded that the NSC is not an agency subject to FOIA, reversing a position it had earlier taken in 1978. See 90 F.3d at 557 (citing Memorandum of Walter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel to Alan J. Kreczko, Special Assistant to the President, Sept. 20, 1993).

9


because that factor was only a threshold consideration, the Armstrong court then turned to

the other two factors to assess the critical “remaining question [of] whether the NSC does in

fact exercise such authority.” Id. at 560 (emphasis added).

Turning to the first factor regarding “how close operationally the group is to the

President,” Armstrong next recognized that the NSC is plainly “proximate” to the President,

and the plaintiff did not attempt to argue otherwise. See 90 F.3d at 560. Indeed, the NSC

could not be more “close operationally” to the President: The President himself serves on

and presides over the Council, 50 U.S.C. § 402(a), and the National Security Staff works

under the control of the President’s National Security Advisor. The Armstrong court thus

concluded that the “intimate organizational and operating relationship between the President

and the NSC is . . . entitled to significantly greater weight in evaluating the NSC’s arguable

status as an agency than is the self-contained structure of the entity.” 90 F.3d at 560.

Finally, after thorough consideration of the authorities delegated to the NSC by both

Congress and the President, Armstrong held that neither the Council nor its staff had been

delegated substantial independent authority by Congress or the President. 90 F.3d at 560–65.

First, the court observed that the statute creating the NSC did not confer on it any substantial

independent authority, but rather contemplated that the Council would serve solely to advise

and assist the President in coordinating and implementing national security policy. See id. at

560–61. This much is apparent from the plain language of the statute: it authorizes the NSC

to “advise the President” as to national security matters, 50 U.S.C. § 402(a); to “coordinat[e]

the policies and functions of the departments and agencies of the Government relating to the

national security,” id. § 402(b); to “assess and appraise the objectives, commitments, and

risks of the United States . . . for the purpose of making recommendations to the President in

connection therewith,” id. § 402(b)(1); and to “consider policies on matters of” national

security “and to make recommendations to the President in connection therewith,” id.

§ 402(b)(2). These statutory functions are quintessentially advisory in nature—all the more

10


so, Armstrong recognized, because the President himself chairs the Council. See 90 F.3d at

560–61.10

Nor did Armstrong find that the President had delegated substantial independent

authority to the NSC separate from its role of providing him advice and assistance. See 90

F.3d at 561–65. Armstrong rejected the plaintiff’s arguments that the NSC exercised

substantial independent authority by virtue of provisions authorizing it to hear appeals of

declassification decisions, id. at 56211; to develop procedures for restoring

telecommunications services in the event of a national emergency, id. at 563; to oversee

implementation of other policies concerning emergency preparedness and crisis

management, id.; to make recommendations to the Department of Commerce regarding

export license applications to further nonproliferation policies, id. at 563–64; or to

coordinate and implement “public diplomacy programs” by supervising standing committees

charged with more particular tasks in support of that broader goal, id. at 564–65.

Notwithstanding each of the Armstrong plaintiff’s arguments to the contrary, the court

rejected the view “that the NSC plays a substantive role apart from that of the President, as

opposed to a coordinating role on behalf of the President.” Id. at 565. Accordingly, the court

held that “the NSC is not an agency subject to the FOIA.” Id.

Nothing about the NSC’s responsibilities and duties has changed that would lead to a

finding of greater independent authority than it possessed at the time Armstrong was

10 The sole argument that the plaintiff in Armstrong made regarding the NSC’s statutory authority—that the NSC had authority over the Director of Central Intelligence—is no longer applicable. The Intelligence Reform and Terrorism Prevention Act of 2004 established the Director of National Intelligence and did not include any provisions related to NSC like the ones that had previously applied to the Director of Central Intelligence. See Pub. L. No. 108-458, 118 Stat. 3638 (2004) (pertinent amended provisions codified at 50 U.S.C. §§ 403, 403-1, 403-3, 403-4). 11 Armstrong noted that the Executive Order provision on which the plaintiff relied in support of this argument, section 3.1(c) of Executive Order 12,356, had been replaced in 1995 in a new Executive Order issued by President Clinton. The current version of that Executive Order provides no role for the NSC to play in appeals regarding the declassification of information. See Exec. Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009).

11


decided. As his predecessors have done, President Obama issued a directive at the beginning

of his presidency establishing the functions and organization of the NSC during his

Administration and made clear that the NSC serves solely as his personal advisory council.

That directive explains that the NSC’s function is “[t]o assist me in carrying out my

responsibilities in the area of national security” and to serve as the “principal forum for

consideration of national security policy issues requiring Presidential determination.” See

Presidential Policy Directive-1 (“PPD-1”) at 1 (Feb. 13, 2009) (emphasis added), available

at http://www.fas.org/irp/offdocs/ppd/ppd-1.pdf, attached as Exh. B. PPD-1 further provides

that the NSC “shall advise and assist me in integrating all aspects of national security policy

as it affects the United States,” and “shall be my principal means for coordinating executive

departments and agencies in the development and implementation of national security

policy.” Id. at 2.

It is thus plain that the NSC serves solely to advise and assist the President in carrying

out his constitutional authority over national security affairs, and the Council does not

exercise substantial independent authority in addition to that role. The D.C. Circuit in

Armstrong correctly reached that conclusion nearly two decades ago, and Plaintiff has put

forth no allegations in its Complaint giving any reason to believe that NSC’s duties and

authorities have changed since that time. Accordingly, consistent with the D.C. Circuit’s

decision in Armstrong, this Court should conclude that NSC is not subject to FOIA because

its sole function is to advise and assist the President and it does not exercise substantial

independent authority.

CONCLUSION For the foregoing reasons, the Court should dismiss the Complaint for failure to state a

claim upon which relief can be granted. Dated: May 10, 2013 Respectfully submitted. STUART F. DELERY Acting Assistant Attorney General

12


http://www.fas.org/irp/offdocs/ppd/ppd-1.pdf

LORETTA E. LYNCH United States Attorney ELIZABETH J. SHAPIRO Deputy Director /s/ Judson O. Littleton JUDSON O. LITTLETON (TX Bar 24065635) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Email: [email protected] Tel: (202) 305-8714 Fax: (202) 616-8470 Attorneys for Defendant

13


Exhibit A

Defendant’s Motion to Dismiss for Failure to State a Claim

Main Street Legal Servs., Inc. v. National Security Council No. 13-cv-00948-ENV-MDG (E.D.N.Y.)






Exhibit B





Exhibit C




TH E WHIT E HOUSE

WA S HIN GTO N

February 13, 2009

PRESIDENTIAL POLICY DIRECTIVE - 1

MEMORANDUM FOR THE VICE PRESIDENT

SUBJECT :

THE SECRETARY OF STATE THE SECRETARY OF THE TREASURY THE SECRETARY OF DEFENSE THE ATTORNEY GENERAL THE SECRETARY OF COMMERCE THE SECRETARY OF ENERGY THE SECRETARY OF HOMELAND SECURITY THE ASSISTANT TO THE PRESIDENT AND CHIEF OF STAFF THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND

BUDGET THE REPRESENTATIVE OF THE UNITED STATES

OF AMERICA TO THE UNITED NATIONS THE UNITED STATES TRADE REPRESENTATIVE THE CHAIR OF THE COUNCIL OF ECONOMIC ADVISERS THE ASSISTANT TO THE PRESIDENT FOR NATIONAL

SECURITY AFFAIRS THE DI RECTOR OF NATIONAL INTELLIGENCE THE ASSISTANT TO THE PRESIDENT FOR ECONOMIC

POLICY THE COUNSEL TO THE PRESIDENT THE DIRECTOR OF THE OFFICE OF SCIENCE AND

TECHNOLOGY POLICY THE CHAIRMAN OF THE JOINT CHIEFS OF STAFF

Organization of the National Security Council System

To assist me in carrying out my responsibilities in the area of national security, I hereby direct that the National Security Council system be organized as follows .

A . The National Security Council

The National Security Counc i l (NSC) shall be the principal forum for consideration of national security policy issues requiring Presidential determination. The functions, membership , and responsibilities of the NSC sha l l be as set forth in the


2

National Security Act of 1947, as amended, and this Presidential Policy Directive. The NSC shall advise and assist me in integrating all aspects of national security policy as it affects the United States - - domestic, foreign, military, intelligence, and economic {in conjunction with the National Economic Council} Along with its subordinate committees, the NSC shall be my principal means for coordinating executive departments and agencies in the development and implementation of national security policy .

The NSC shall have as its members the President, Vice President, Secretary of State, Secretary of Defense, and Secretary of Energy, as prescribed by statute . In addition, the membership of the NSC shall include the Secretary of the Treasury, the Attorney General, the Secretary of Homeland Security, the Representative of the United States of America to the United Nations, the Assistant to the President and Chief of Staff (Chief of Staff to the President), and the Assistant to the President for National Security Affairs (National Security Advisor) . The Director of National Intelligence and the Chairman of the Joint Chiefs of Staff, as statutory advisers to the NSC, shall attend NSC meetings. The Counsel to the President shall be invited to attend every NSC meeting, and the Assistant to the President and Deputy National Security Advisor shall attend every meeting, and serve as Secretary . When international economic issues are on the agenda of the NSC, the NSC ' s regular attendees will include the Secretary of Commerce, the United States Trade Representative, the Assistant to the President for Economic Policy, and the Chair of the Council of Economic Advisers . When homeland security or counter - terrorism related issues are on the agenda, the NSC's regular attendees will include the Assistant to t h e President for Homeland Security and Counter-Terrorism. When science and technology related issues are on the agenda, the NSC's regular at t endees will include the Director of the Office of Science and Technology Policy. The heads of other executive departments and agencies, and other senior officials, shall be invited to attend meetings of the NSC as appropriate.

The NSC shall meet regularly and as required. The National Security Advisor, at my direction and in consultation with other members of the NSC, shall be responsible for determining the agenda, ensuring that necessary papers are prepared, and recording NSC actions and Presidential decisions in a timely manner.

B. The NSC Principals Committee

The NSC Principals Committee {NSC/PC) will continue to be the senior interagency forum for consideration of policy issues


3

affecting national security, as it has been since 1989. The National Security Advisor shall serve as Chair, and its regular members will be the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary of Energy, the Secretary of Homeland Security, the Director of the Office of Management and Budget, the Representative of the United States of America to the United Nations, the Chief of Staff to the President, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff . The Assistant to the President and Deputy National Security Advisor, the Deputy Secretary of State, the Counsel to the President, and the Assistant to the Vice President for National Security Affairs shall be invited to attend every meeting of the NSC/PC. When international economic issues are on the agenda, the NSC/PC's regular attendees will include the Secretary of Commerce, the United States Trade Representative, the Chair of the Council of Economic Advisers, and the Assistant to the President for Economic Policy, who, at the discretion of the National Security Advisor, may serve as chair. When homeland security or counter-terrorism related issues are on the agenda, the NSC/PC's regular attendees will include the Assistant to the President for Homeland Security and Counter-Terrorism, who, at the discretion of the National Security Advisor, may serve as chair . When science and technology related issues are on the agenda, the NSC's regular attendees will include the Director of the Office of Science and Technology Policy. The heads of other executive departments ' and agencies, along with additional senior officials, shall be invited as appropriate.

The NSC/PC shall meet at the call of the National Security Advisor, in consultation with the members of the NSC/PC . The National Security Advisor shall determine the agenda in consultation with the other committee members, and shall ensure that necessary papers are prepared and that conclusions and decisions are communicated in a timely manner.

C. The NSC Deputies Committee

The NSC Deputies Committee (NSC/DC) shall review and monitor the work of the NSC interagency process (including Interagency Policy Committees established pursuant to section D below) . The NSC/DC shall also help ensure that issues being brought before the NSC/PC or the NSC have been properly analyzed and prepared for decision . The NSC/DC shall focus significant attention on policy implementation. Periodic reviews of the Administration"s major foreign policy initiatives shall be scheduled to ensure that they are being implemented in a timely and effective manner. Such reviews should periodically consider whether existing policy directives should be revamped or


4

rescinded . Finally, the NSC/DC shall be responsible for day-today crisis management, reporting to the National Security Counci l . Any NSC principal or deputy, as well as the Nat i onal Security Advisor, may request a meeting of the Deputies Committee in its crisis management capacity.

The Assistant to the President and Deputy National Security Advisor shall chair the NSC/DC. Its members are the Deputy Secretary of State, the Deputy Secretary of the Treasury, the Deputy Secretary of Defense, the Deputy Attorney General, the Deputy Secretary of Energy, the Deputy Secretary of Homeland Security, the Deputy Director of the Office of Management and Budget, the Deputy to the United States Representative to the United Nations, the Deputy Director of National Intelligence, the Vice Chairman of the Joint Chiefs of Staff, and the Assistant to the Vice President for National Security Affairs. When homeland security or counter-terrorism related issues are on the agenda, a regular attendee of meetings of the NSC/DC will include the Assistant to the President for Homeland Security and CounterTerrorism and Deputy National Security Advisor, who, at the discretion of the Assistant to the President and Deputy National Security Advisor, may serve as chair . When international economic issues are on the agenda, a regular meeting of the NSC/DC will include the Deputy Assistant to the President and Deputy National Security Advisor for International Economics, who, at the discretion of the Assistant to the President and Deputy National Security Advisor, may serve as chair . When science and technology related issues are on the agenda, a regular meeting of the NSC/DC will include an Associate Director of the Office of Science and Technology Policy . The chair may invite representatives of other executive departments and agencies, and other senior officials, to attend meetings of the NSC/DC as appropriate.

The Assistant to the President and Deputy National Security Advisor shall be responsible - - in consultation with the members of the NSC/DC for calling meetings of the NSC/DC, for determining the agenda, for ensuring that the necessary papers are prepared, and for preparing and circulating conclusions and decisions in a timely manner . The NSC/DC shall ensure that all papers to be discussed by the NSC or the NSC/PC fully analyze the issues, fairly and adequately set out the facts, consider a full range of views and options, and satisfactorily assess the prospects, risks , and implications of each .

D . Interagency Policy Committees

Management of the development and implementation of national security pol i cies by multiple agencies of the United States Government shall be accomplished by the NSC Interagency Policy


5

Committees (NSC/IPCs). The NSC/IPCs shall be the main day-to-day fora for interagency coordination of national security policy. They shall provide policy analysis for consideration by the more senior committees of the NSC system and ensure timely responses to decisions made by the President. The NSC/IPCs shall be established at the direction of the Deputies Committee, and be chaired by the NSC (or NEC, as appropriate) i at its discretion, the NSC/DC may add co-chairs to any NSC/IPC if desirable . The NSC/IPCs shall convene on a regular basis to review and coordinate the implementation of Presidential decisions in their policy areas. Strict guidelines shall be established governing the operation of the Interagency Policy Committees, including participants, decisionmaking path, and time frame.

An early meeting of the NSC/DC will be devoted to setting up the NSC/IPCs and providing their mandates for reviewing policies and developing options in their respective areas for early consideration by the interagency committees established by this directive. The NSC/IPCs will replace the existing system of Policy Coordination Committees .

The Vice President and I may attend any and all meetings of any entity established by or under this directive.

This document is the first in a series of Presidential Policy Directives that, along with Presidential Study Directives, shall replace National Security Presidential Directives as instruments for communicating presidential decisions about national security policies of the United States. This Directive shall supersede all other existing presidential guidance on the organization of the Nationa l Security Council system. With regard to its application to economic matters, this document shall be i nterpreted in concert with any Executive Order governing the National Economic Council and with Presidential documents signed hereafter that implement either this directive or that EXecutive Order .


Documents

MEMORANDUM IN SUPPORT OF DEFENDANT’S · PDF filePlaintiff, v. NATIONAL SECURITY COUNCIL, Defendant. ))))) Case No. 1:13-cv-00948-ENV-MDG . Date Served: May 10, 2013 . MEMORANDUM