Notice & Comment

D.C. Circuit Review – Reviewed: Just what is a Glomar response?

Here is a belated summary of the D.C. Circuit’s administrative law opinions for the week of June 5. Several pressing questions will be answered, including, just what is a Glomar response?

In Schaerr v. DOJ, the D.C. Circuit considered whether several agencies had properly issued a Glomar response to a FOIA request. When an agency gets a FOIA request, it may deny it and refuse to confirm or deny that it has responsive documents. The CIA did that when asked about the Hughes Glomar Explorer, a ship. So that’s a Glomar response.

When can an agency issue a Glomar response? Judge Rao’s opinion in Schaerr, which Judge Millett and Senior Judge Tatel joined, summarized the standard thus: “An agency properly issues a Glomar response when its affidavits plausibly describe the justifications for issuing such a response, and these justifications are not substantially called into question by contrary record evidence.” Applying this standard, the Court held that “an agency need not search for responsive records before invoking” Glomar.

So much for Glomar. The D.C. Circuit also decided two cases in which agencies did not fare so well as they did in Schaerr. In Secretary of Labor v. Westfall Aggregate & Materials, Inc., the D.C. Circuit reversed a decision of the Federal Mine Safety and Health Review Commission because it decided a case on grounds that the parties never raised and that were not supported by the record. In an opinion by Senior Judge Edwards, joined by Judges Pillard and Pan, the D.C. Circuit concluded that the Commission’s decision was the very “antithesis of reasoned decision-making.” And because a reviewing court “‘cannot do [the Commission’s] work for it,'” the court remanded for further proceedings, which it signaled should proceed promptly.

Finally, End Citizens United PAC v. FEC was a case that arose from deadlock on the Federal Election Commission. End Citizens United filed an administrative complaint alleging that the 2020 Trump campaign committee “solicited and directed funds to America First Action, a ‘super PAC,’ without regard to statutory source prohibitions and contribution limits,” in violation of federal law. The FEC deadlocked after its Office of General Counsel recommended that it “find ‘reason to believe’ the allegation.” After the deadlock on that issue, the FEC dismissed ECU’s complaint without an explanation. Two months later, after ECU sued, the two Commissioners who voted against moving forward issued a statement that they had exercised their “prosecutorial discretion.” The FEC did not appear in court to defend its action.

The D.C. Circuit held that the two Commissioners’ post hoc statement was not enough to sustain the FEC’s action on judicial review. Senior Judge Rogers wrote the opinion, which was joined by Judge Wilkins and Senior Judge Tatel. The Court held that the two controlling commissioners had not done what circuit precedent clearly required them to do: “issue a contemporaneous statement ‘explaining their votes.'” Judge Rogers’s opinion stressed SEC v. Chenery Corp.‘s canonical statement that the basis for an agency’s action “must be measured by what the Commission did, not by what it might have done.” The matter will go back to the Commission, the composition of which has “apparently changed since its dismissal of ECU’s administrative complaint.” Will the outcome change? Will the matter once again come before the D.C. Circuit? These questions cannot be answered today but stay tuned to D.C. Circuit Review – Reviewed.

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