Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Concurring statement filed by Circuit Judge D.H. GINSBURG.
HARRY T. EDWARDS, Circuit Judge:
This case raises issues of mootness, ripeness, and the appropriateness of equitable relief for the tardy release of bid abstracts by the Air Force in response to Freedom of Information Act ("FOIA") requests by Payne Enterprises, Inc. ("Payne"). Beginning in March 1985, officers at Air Force Logistics Command ("AFLC") bases refused to supply Payne with copies of bid abstracts when, in their judgment, competition for contracts was so limited that release of the abstracts might result in higher prices in the future. The base officers perfunctorily invoked FOIA Exemptions 4 and 5, 5 U.S.C. § 552(b)(4), (5) (1982), in justifying their denials. Payne appealed these denials to the Secretary of the Air Force, who without exception ordered disclosure because neither FOIA exemption applied to the material Payne had requested. Nevertheless, AFLC officers continued to refuse Payne's FOIA requests for bid abstracts, thereby necessitating further — and invariably successful — administrative appeals. The delay occasioned by these appeals injured Payne's business by frustrating its clients' desire for the prompt delivery of information on contract bids.
In July 1986, Payne filed suit in the District Court, under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1361 (mandamus), 28 U.S.C. § 1651 (All Writs Act) and 5 U.S.C. § 552 (FOIA), challenging the Air Force's practice of unjustified delay and seeking declaratory and injunctive relief to compel the defendants to release abstracts of negotiated acquisitions.
We hold that the claimed voluntary cessation of the Air Force practice of refusing to release bid abstracts (absent an appeal to the Secretary of the Air Force) does not render moot Payne's challenge to the Air Force's practice of unjustified delay. We also hold that Payne's challenge is ripe for adjudication. Because the Air Force has admitted that the information initially denied Payne does not fall within FOIA Exemptions 4 and 5, and because the repeated delays Payne suffered in securing that information pursuant to an Air Force practice constitute clear violations of the FOIA, we reverse the District Court's dismissal and remand with instructions to afford Payne declaratory relief and to consider the propriety of injunctive relief.
Payne sells information and advice about Government contracts to prospective contractors. Payne obtains much of that information through FOIA requests. From 1970 through March 1985, Payne regularly requested from AFLC bases, and routinely received, copies of bid abstracts listing the offerors' names and aggregate offer prices for negotiated contracts once those contracts had been awarded. Starting in March 1985, officers at several AFLC bases refused to supply Payne with copies of bid abstracts prepared in connection with contracts for which there was limited competition.
Letter from Steven Thompson to Major General Charles McDonald (June 20, 1986), reprinted in Appendix ("App.") 21 (quoting AFLC policy letter). In denying Payne's requests for bid abstracts when the foregoing conditions were met, the AFLC officers relied on FOIA Exemptions 4 and 5
Payne appealed the denials to the Secretary of the Air Force. Without exception, the Secretary's Office released the bid abstracts Payne had requested. It appears that the Secretary concluded that release of the information would not necessarily result in higher prices for the Government, because unsuccessful bidders would have an incentive to lower their bids when competing for later contracts and because the Air Force could refuse to grant large price increases in negotiated contracts that could not be justified by corresponding increases in contractors' costs.
The AFLC officers, however, did not mend their ways immediately. They continued to withhold the bid abstracts Payne requested when they deemed competition for a contract sufficiently limited, forcing Payne to make repeated appeals to the Secretary to obtain the information to which Payne was entitled. Such appeals were frustrating, costly, and detrimental to Payne's business, because its clients, most of whom themselves tendered bids on Government contracts, understandably wanted a prompt report on the latest round of bidding so that they might advance profitable yet successful offers.
On July 18, 1986, Payne brought suit for declaratory and injunctive relief in the District Court. On November 17, 1986, the District Court granted the Government's motion to dismiss. See Payne Enterprises, Inc. v. United States, Civ. No. 86-1987 (D.D.C. Nov. 17, 1986), reprinted in App. 26-30. Although the District Court found that it was empowered to provide equitable relief, it considered itself bound to deny such relief because Payne had obtained the information it had requested through the Air Force's administrative appeals procedure. The District Court noted that "[i]t is possible ... that circumstances might exist where the Secretary's failure to compel a subordinate's compliance with the letter and spirit of the FOIA, would constitute such an abuse that judicial intervention might be warranted." App. 30. But the court concluded, without explanation, that such circumstances were not present here.
On December 15, 1986, Payne filed a notice of appeal with this court. Shortly thereafter, AFLC bases began honoring Payne's requests for bid abstracts even when there had been limited competition for a particular contract. No requests have been denied since January 1987. In an affidavit submitted with the Government's brief, Deborah McLaughlin, an Air Force attorney, states that, as a result of a letter sent by Brigadier General Norman Thorpe to the AFLC bases on April 22, 1987, "all abstracts are being released at the request level by the A[F]LC from which they are requested." Affidavit of Deborah McLaughlin, Brief for Appellees, Addendum at 4. Major McLaughlin further promises that "the negotiated contract abstracts ... will not be denied in the future based solely on a limited competition situation...." Id. at 4-5.
On July 30, 1987, this court denied the Government's motion for summary affirmance, which was predicated on the claim that its new disclosure policy rendered this controversy moot. In denying this motion, we noted that Payne's allegations regarding AFLC refusals to disclose information "strike us as quite serious."
The Government argues that Payne's suit is moot, both because the Air Force eventually released the abstracts Payne had requested and because AFLC bases have ceased refusing Payne's requests and promise to grant them in the future. We reject these contentions.
It is, of course, true that, "however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal
The fact that the practice at issue is informal, rather than articulated in regulations or an official statement of policy, is irrelevant to determining whether a challenge to that policy or practice is moot. Courts have long recognized that there "may very well be circumstances in which prolonged delay in making information available or unacceptably onerous opportunities for viewing disclosed information require judicial intervention." Lybarger v. Cardwell, 577 F.2d 764, 767 (1st Cir.1978). So long as an agency's refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials, a party's challenge to the policy or practice
Nor can the Air Force moot this suit merely by refraining from the conduct of which Payne has complained while the case is pending. On this point, the Supreme Court has spoken unequivocally:
United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (citations omitted); see also County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979).
The Government contends, however, that the Air Force's promise to desist from following the challenged practice should render this suit moot. This contention must fail because, on the facts of this case, the Government has not come close to satisfying the heavy burden of demonstrating
345 U.S. at 633, 73 S.Ct. at 897 (footnote omitted).
The principles enunciated in W.T. Grant and County of Los Angeles control our resolution of this issue. The Government has offered only modest assurance, in the form of an affidavit by an Air Force major, that the contested practice will not be reinstated. Major McLaughlin's claim that Payne's requests for bid abstracts "will not be denied in the future based solely on a limited competition situation" seems to be founded on her own inference from a letter sent by Brigadier General Thorpe to the AFLC bases on April 22, 1987. See Affidavit of Deborah McLaughlin, Brief for Appellees, Addendum at 4-5. She does not pretend to speak for her superiors, nor have they signed affidavits pledging future compliance. Given this weak assurance, coupled with the history of stubborn refusals by AFLC officers to release information to Payne — even in the face of instructions from the Secretary of the Air Force — we certainly cannot conclude that the Air Force has met the "heavy burden" of showing that "there is no reasonable expectation that the wrong will be repeated." United States v. Aluminum Co. of America, 148 F.2d 416, 448 (2d Cir.1945); see W.T. Grant, supra. The case therefore cannot be deemed moot.
The Government also submits that we should not reach the merits of Payne's suit because it is unripe. Generally, in ascertaining whether a suit is ripe, courts must balance "the petitioner's interest in prompt consideration of allegedly unlawful agency action against the agency's interest in crystallizing its policy before that policy is subjected to judicial review and the court's interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting." Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985); see Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) (courts must assess "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration"). Contrary to the Government's assertion, we hold that these factors clearly weigh in favor of adjudication rather than dismissal.
First, this case presents a concrete legal dispute; no further factual development is essential to clarify the issues. The question is simply whether the blanket refusal of AFLC bases to grant Payne's FOIA requests when there is limited competition for a contract, without any legal reason apart from an admittedly inadequate reference to Exemptions 4 and 5, warrants equitable relief. The Government's claim that the case does not present purely legal issues because each request is different and may implicate different concerns misses the point of this case. Payne acknowledges that if the Air Force were to withhold information on the basis of some other exemption, or if it were to invoke Exemption 4 or Exemption 5 for some reason other than the bare fact that competition for a particular contract was limited, then Payne would have to seek review through administrative channels. See Reply Brief for Appellant at 3-4. We cannot but conclude that the issue presented by Payne's suit is sufficiently sharp for adjudication; nothing would be gained by postponing its resolution.
Second, there is no doubt whatever that the challenged Air Force practice has
Third, Payne obviously has an interest in the speedy adjudication of its grievance, so there is little question regarding the appellant's "interest in prompt consideration of allegedly unlawful agency action." Eagle-Picher, 759 F.2d at 915. However, as we suggested in Eagle-Picher, this factor is largely irrelevant in a case of this sort because we have not found here that either the agency or the court has a significant interest in postponing review. Id. at 915, 918. In other words, under the ripeness doctrine, the hardship prong of the Abbott Laboratories test is not an independent requirement divorced from the consideration of the institutional interests of the court and agency. As we held in Consolidation Coal Co. v. Federal Mine Safety & Health Review Commission, 824 F.2d 1071 (D.C.Cir.1987):
Id. at 1081-82 (footnotes omitted).
Moreover, even if we were required to consider whether Payne has demonstrated sufficient hardship "to outweigh any institutional interests in the deferral of review," Better Government, 780 F.2d at 92, we would still find this suit ripe for review. Indeed, our decision in Better Government
In sum, the collection of interests relevant to the adjudication of Payne's suit points ineluctably to the conclusion that this case is ripe for decision.
C. Payne's Right to Equitable Relief
The FOIA imposes no limits on courts' equitable powers in enforcing its terms. Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 19-20, 94 S.Ct. 1028, 1038, 39 L.Ed.2d 123 (1974). The District Court concluded, however, that it ought not use its discretion to grant equitable relief because Payne had prevailed in its administrative appeals and because the Air Force's failure to compel AFLC bases to abide by the letter and spirit of the FOIA was, for some unspecified reason, not sufficiently outrageous to warrant a court order. Payne Enterprises, Inc. v. United States, Civ. No. 86-1987 (D.D.C. Nov. 17, 1986), App. 29-30.
We hold that the judgment of the District Court reflects a clear abuse of discretion. For almost two years, officers at AFLC bases refused to fulfill Payne's requests for copies of bid abstracts when there was limited competition for a contract, thus forcing Payne to seek administrative review. In every case, the Secretary of the Air Force released the information Payne requested. In November 1985 and June 1986, the Secretary's Office sent letters to AFLC commanders, admonishing them for their refusals to grant Payne's requests because no FOIA exemption applied. Affidavit of Garner D. Payne ¶ 10, reprinted in App. 18; Letter of Steven Thompson to Major General Charles McDonald (June 20, 1986), App. 20-21. The AFLC officers, however, continued to deny Payne's requests, and the Secretary refrained from taking firm action to end their recalcitrance. The Secretary's inability to deal with AFLC officers' noncompliance with the FOIA, and the Air Force's persistent refusal to end a practice for which it offers no justification, entitle Payne to declaratory relief. See Long v. IRS, 693 F.2d 907 (9th Cir.1982) (reversal and remand for consideration of injunctive relief where IRS repeatedly released requested documents after suits were filed in effort to render suits moot). The fact that Payne eventually obtained the information it sought provides scant comfort when stale information is of little value yet more costly than fresh information ought to be. Payne has an undeniable right to the bid information — whether or not it is compiled in the form of bid abstracts — and it is entitled to a judgment in support of its claim. On this point, we agree with the holding of the Ninth Circuit in Long:
693 F.2d at 910. We therefore reverse and remand with instructions to afford Payne declaratory relief.
We reverse the District Court's decision granting the Government's motion to dismiss, and remand with instructions to enter a declaratory judgment for Payne. The District Court should also supply Payne with injunctive relief if it deems such relief appropriate.
D.H. GINSBURG, Circuit Judge, concurring:
I concur in the judgment and in all of the Court's opinion except the discussion of the hardship element of ripeness, which is, by the Court's own description, "largely irrelevant in a case of this sort," supra at 493, or "[i]n this case ... moot." Id. at 493 n. 10. That portion of the opinion addresses an issue that was not contested before us and need not be decided by us.
In addition to the claim of "unreasonable delay," Payne's complaint also invokes section 1331 to raise a demand for information under the FOIA and a challenge to an allegedly unlawful agency practice.
In Federal Open Market Committee v. Merrill, 443 U.S. 340, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979), the Supreme Court criticized the view that an agency may "withhold any memoranda ... whenever the agency concluded that disclosure would not promote the `efficiency' of its operations or otherwise would not be in the `public interest.'" Id. at 354, 99 S.Ct. at 2809. This view, the Court said, "would leave little, if anything, to FOIA's requirement of prompt disclosure, and would run counter to Congress' repeated rejection of any interpretation of the FOIA which would allow an agency to withhold information on the basis of some vague `public interest' standard." Id. at 354, 99 S.Ct. at 2809 (citations omitted). Addressing the distinction between the protection that confidential commercial information enjoys under Exemption 5 and material protected by executive privilege, the Court further stated:
Id. at 360, 99 S.Ct. at 2812 (emphasis added). The Air Force can hardly rely on this decision to vindicate its refusal to release bid abstracts after a contract has been awarded.
The District Court's holding in Morrison-Knudsen Company v. Department of the Army, 595 F.Supp. 352 (D.D.C.1984), aff'd, 762 F.2d 138 (D.C.Cir.1985), also affords the Government no solace. In that case, the court held that documents that would reveal the amount of the Army's own sealed "bid" for an Army contract to provide certain services that private contractors could also bid to supply may be withheld under Exemption 5. The court emphasized, however, that those documents would have to be released once the contract was awarded. See 595 F.Supp. at 355. Morrison-Knudsen therefore contradicts, rather than sustains, the Government's assertion in its brief.
Government Land Bank v. General Services Administration, 671 F.2d 663 (1st Cir.1982), offers no assistance either. In upholding the Government's assertion that Exemption 5 permitted it to postpone disclosure of its appraisal of the value of land the Government was offering for sale until after the sale had been made, the First Circuit relied upon those portions of the Supreme Court's opinion in Merrill quoted above. The First Circuit in no way suggested that release of the appraisal could be deferred beyond the date of sale. Hence, the Air Force cannot invoke this decision to justify its refusal to disclose bid information once a contract has been made.
Id. at 1081 (quoting Eagle-Picher, 759 F.2d at 918) (brackets inserted to highlight reference to "positive interest"). Furthermore, if, as the majority holds in Consolidation Coal, the hardship prong of the Abbott Laboratories test is not an independent requirement from the consideration of the institutional interests of the court and agency, id. at 1081 n. 11, and if (as in this case) there are no significant agency or judicial interests militating in favor of delay, we cannot imagine how the hardship factor could ever tip the balance against judicial review.
In this case, the question is moot. First, as we have shown above, any balance of the hardship prong militates in favor of judicial review. Second, there are clear positive interests here. The benefit to the agency is that disposition of this issue will resolve, once and for all, the long-standing debate between AFLC officers and the Office of the Secretary of the Air Force over the application of the FOIA with respect to bid abstracts. It will also curb what the Secretary's Office has described as an "excessive" number of administrative appeals by Payne. See note 6 supra and accompanying text. The benefit to the court is avoidance of a waste of judicial resources. A significant amount of litigation time already has been expended on this dispute, and it would be a monumental waste for us to avoid judgment now when we have good reason to believe that, absent judgment, exactly the same case will return to court later.