22-1202 Cox v. Dep’t of Justice

In the United States Court of Appeals For the Second Circuit

August Term, 2023 No. 22-1202

DOUGLAS COX, Plaintiff-Appellant,

v.

DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF DEFENSE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, DEPARTMENT OF STATE OF THE UNITED STATES, Defendants-Appellees.

On Appeal from a Judgment of the United States District Court for the Eastern District of New York.

ARGUED: SEPTEMBER 18, 2023 DECIDED: AUGUST 5, 2024

Before: CHIN, NARDINI, and NATHAN, Circuit Judges.

Under the Freedom of Information Act (“FOIA”), a federal agency is required to produce “an agency record” when a member of the public requests disclosure, subject to certain exemptions.

(f)(2)(A); see

§ 552(a)(3), (b). Records belonging to entities not covered by FOIA, such as Congress, are not “agency records” and therefore are not subject to FOIA disclosure requirements. This case presents the issue of whether documents created by Congress that are subsequently transmitted to FOIA-covered agencies constitute “agency records” subject to disclosure under FOIA. The United States Senate Select Committee on Intelligence generated a report on the Detention and Interrogation Program conducted by the Central Intelligence Agency after September 11th. The Committee transmitted the report to various FOIA-covered federal agencies. Plaintiff-Appellant Douglas Cox submitted FOIA requests to the defendant agencies for their copies of the report. The agencies denied the requests, contending that the report is a congressional record rather than an agency record and is thus not subject to FOIA disclosure. The United States District Court for the Eastern District of New York (Rachel P. Kovner, District Judge) agreed with the agencies, granted summary judgment in their favor, and denied Cox’s request for discovery. Cox appeals these rulings. We agree with the district court. Pursuant to the test we articulated in Behar v. United States Department of Homeland Security,

(2d Cir. 2022), cert. denied,

(2023), the Committee manifested a clear intent to control the report at the time of its creation, and because the Committee’s subsequent acts did not vitiate that intent, the report constitutes a congressional record not subject to FOIA. We note that although Cox disputes the proper test for agency records, he did not cite Behar in his opening brief even though it had been decided months earlier. At oral argument, Cox explained that he thought the decision might be overturned on rehearing or by the Supreme Court. We join our sister circuits in holding that a published opinion becomes binding precedent when it is decided, regardless of whether the mandate has issued or of any

2 pending petitions for rehearing or for writ of certiorari. It remains so until it is vacated or overruled. We further conclude that the district court did not abuse its discretion by denying discovery, as Cox failed to make any of the showings necessary to warrant discovery in a FOIA case. We therefore AFFIRM the district court’s judgment.

DOUGLAS COX, pro se, Long Island City, NY.

THOMAS PULHAM (Brian M. Boynton, Principal Deputy Assistant Attorney General, Sharon Swingle, Attorney, Appellate Staff, Civil Division, on the brief), Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, Washington, D.C., for Defendants-Appellees.

WILLIAM J. NARDINI, Circuit Judge:

Under the Freedom of Information Act (“FOIA”), a federal

agency is required to produce “an agency record,” subject to

enumerated exemptions, when a member of the public requests

disclosure.

(f)(2)(A); see

§ 552(a)(3), (b). Records

belonging to entities not covered by FOIA, such as the United States

Congress, are not “agency records” and therefore are not subject to

FOIA disclosure requirements. This case presents the issue of

3 whether documents created by Congress and subsequently

transmitted to FOIA-covered agencies constitute “agency records”

subject to disclosure under FOIA.

The United States Senate Select Committee on Intelligence

(“SSCI” or the “Committee”) generated a report on the Detention and

Interrogation Program (the “Program”) conducted by the Central

Intelligence Agency (“CIA”) after September 11th. The Committee

transmitted draft and final versions of the report to various federal

agencies including the Department of Justice (“DOJ”), the Federal

Bureau of Investigation (“FBI”), the Department of Defense (“DOD”),

the Office of the Director of National Intelligence (“ODNI”), and the

Department of State (collectively, the “Agencies”). Plaintiff-

Appellant Douglas Cox submitted FOIA requests for the Agencies’

copies of the report as well as other related communications. The

Agencies denied the requests for copies of the report, arguing that

those documents are congressional records, rather than agency

4 records, and are therefore not subject to FOIA disclosure

requirements.

The United States District Court for the Eastern District of New

York (Rachel P. Kovner, District Judge) granted summary judgment in

favor of the Agencies, concluding, inter alia, that the report is a

congressional record not subject to the FOIA disclosure requirements.

The district court also denied Cox’s request for discovery. Cox

challenges these two decisions on appeal.

We agree with the district court. “To determine whether an

agency exercises control over documents obtained from an entity not

covered by the FOIA, we ask whether the non-covered entity has

manifested a clear intent to control the documents, such that the

agency is not free to use and dispose of the documents as it sees fit.”

Behar v. U.S. Dep’t of Homeland Sec.,

(2d Cir. 2022), cert.

denied,

(2023) (internal quotation marks and alteration

marks omitted). If so, then “the document is not an agency record

5 subject to the FOIA.”

Here, the record shows that the Committee

manifested a clear intent to control the report at the time of its creation

and that the Committee’s subsequent acts did not vitiate that intent.

The report therefore constitutes a congressional record not subject to

FOIA disclosure requirements.

We note that although Cox disputes the proper test for agency

records, he did not cite Behar in his opening brief even though it had

been decided months earlier. At oral argument, Cox explained that

he thought the decision might be overturned on rehearing or by the

Supreme Court. We join our sister circuits in holding that a published

opinion becomes binding precedent when it is decided, regardless of

whether the mandate has issued or of any pending petitions for

rehearing or for writ of certiorari. It remains so until it is vacated or

overruled.

6 We further conclude that the district court did not abuse its

discretion by denying discovery to Cox, as he failed to make any of

the showings necessary to warrant discovery in a FOIA case.

We therefore AFFIRM the district court’s judgment.

I. Background

A. Facts

The following facts are drawn from the summary judgment

record.

In the aftermath of the terrorist attacks of September 11, 2001,

the CIA implemented the Detention and Interrogation Program in an

effort to gather intelligence for the purpose of preventing future

terrorist attacks. Through the Program, which was operational

between September 2001 and January 2009, the CIA detained more

than 100 people and used “enhanced interrogation techniques” to

acquire intelligence. J.A. at 115. In March 2009, the United States

Senate Select Committee on Intelligence, chaired by the late Senator

Dianne Feinstein, initiated an investigation of the Program.

7 Pursuant to its investigation, the Committee requested access

to millions of highly sensitive and classified documents from the CIA.

The investigation could not proceed without the Committee and the

CIA first reaching consensus on a set of terms to govern the

Committee’s review of the documents, given their highly confidential

nature. To that end, on May 28, 2009, the CIA sent the Committee a

proposed memorandum of understanding, which required the

Committee staffers to, among other things, review relevant

documents in a designated “Reading Room” and prepare all versions

of any reports for the investigation on a “CIA approved stand-alone

computer system” in the Reading Room.

.

The Committee responded to the CIA with a letter dated June

2, 2009, proposing a series of “procedures and understandings” to

govern its investigation.

. The letter required the CIA to, inter

alia, make available relevant documents, provide the aforementioned

stand-alone computer system in the Reading Room “with a network

8 drive for Committee staff and Members” to conduct their

investigation, and restrict access by CIA employees to that computer

system.

. The letter also addressed the issue of the ownership

of any materials generated by the Committee staff in connection with

the investigation:

Any documents generated on the network drive . . . , as well as any other notes, documents, draft and final recommendations, reports or other materials generated by Committee staff or Members, are the property of the Committee and will be kept at the Reading Room solely for secure safekeeping and ease of reference. These documents remain congressional records in their entirety and disposition and control over these records, even after the completion of the Committee’s review, lies exclusively with the Committee. As such, these records are not CIA records under the Freedom of Information Act or any other law. The CIA may not integrate these records into its records filing systems, and may not disseminate or copy them, or use them for any purpose without the prior written authorization of the Committee. The CIA will return the records to the Committee immediately upon request in a manner consistent with paragraph 9 [of the letter]. If the CIA receives any request or demand for access to these records from outside the CIA under the Freedom of Information Act or any other authority, the CIA will immediately notify the Committee and will respond to

9 the request or demand based upon the understanding that these are congressional, not CIA, records.

at 29–30.

On June 8, 2009, the CIA sent a letter to the Committee that

sought clarification regarding some of the procedures described in the

June 2, 2009, letter. The CIA agreed with the Committee on the

ownership issue, stating that “[t]he SSCI retains ownership of

anything created on [the network] drive, it is SSCI property and will

be handled accordingly vis-à-vis the FOIA.”

.

After additional negotiations, the CIA and the Committee

finally reached agreement on all the procedures governing the

investigation, and the Committee began its investigation of the

Program. Under the agreed-upon procedures, the Committee staff

members drafted a report on the investigation on the segregated

network drive in the Reading Room. The Committee, with the help

of the CIA, eventually transferred draft versions of the report to the

10 Committee’s secure facilities at the United States Capitol to enable the

Committee to complete the drafting process in its own workspace.

In December 2012, the Committee completed its investigation

and produced a report totaling over 6,000 pages, which included an

executive summary (the “Executive Summary”) and a section with

the findings and conclusions (the “Findings and Conclusions”). The

Committee approved the report by a vote of 9–6 on December 13,

2012. Later the same day, a Committee staff member emailed various

executive agencies to notify them of the approval of the report and of

the Committee’s plan to transmit “a limited number of hard copies of

the report for review” to the White House, the ODNI, the CIA, and

the DOJ.

. The staff member noted that the Committee

would “only provide copies of the report to specific individuals who

are identified in advance to the [Committee] Chairman.”

On December 14, 2012, Senator Feinstein sent a letter to the

White House and then-President Barack Obama to inform them of the

11 completion of the investigation and the accompanying report.

Senator Feinstein indicated that the Committee would provide copies

of the report to the White House and appropriate agencies for the

purpose of soliciting feedback and, after receiving and considering

that feedback, she would “present [the] report with any accepted

changes again to the Committee to consider how to handle any public

release of the report, in full or otherwise.”

.

The Committee revised the report after considering comments

from the CIA and Committee members. On April 3, 2014, the

Committee convened in a closed session and approved the updated

version of the report. It also voted to declassify the Executive

Summary and the Findings and Conclusions. The Committee did not,

however, consider declassifying or releasing the full report. In an

April 3, 2014, press release, Senator Feinstein declared that the full

report “will be held for declassification at a later time.”

. She

later explained that she did not seek declassification of the full report

12 at that time because she believed that the Executive Summary

sufficiently described the Program and the study’s findings, and that

obtaining declassification of the full report would delay the release of

the Executive Summary.

On April 7, 2014, Senator Feinstein sent a letter to President

Obama and the White House requesting that they declassify the

Executive Summary and the Findings and Conclusions “with

minimal redactions” necessary for national security concerns.

. Senator Feinstein also stated that she would transmit copies of the

updated full report to the White House and the appropriate agencies.

She wrote that she “encourage[d] and approve[d] the dissemination

of the updated report to all relevant Executive Branch agencies” and

that the report “should be viewed within the U.S. Government as the

authoritative report on the CIA’s actions.”

at 20–21. After the

updated report was transmitted to the agencies, who could review the

13 report was “[a]t the discretion of the officials in official receipt,”

according to an email from a Committee staffer to the DOJ.

.

On August 1, 2014, ODNI produced a declassified and redacted

version of the Executive Summary and the Findings and Conclusions.

The Committee objected to that version because in its view, the

redactions prevented a clear understanding of the study’s findings

and conclusions.

In the ensuing months, the Committee engaged in negotiations

with the CIA and the White House regarding the redactions. As the

negotiations progressed, the Committee revised the Executive

Summary, as well as the corresponding portions of the full report, to

produce a publicly releasable document that clearly conveys the

study’s findings. After the Committee, the White House, and the CIA

reached agreement on the redactions, the ODNI declassified a

partially redacted version of the Executive Summary.

14 On December 9, 2014, the Committee filed with the United

States Senate a final version of the classified report and publicly

released the declassified version of the Executive Summary and the

Findings and Conclusions. Senator Feinstein wrote a Foreword to

accompany the declassified version of the Executive Summary and

the Findings and Conclusions, which stated that “[d]ecisions will be

made later on the declassification and release of the full 6,700 page

Study.” The Committee, Committee Study of the Central Intelligence

Agency’s Detention and Interrogation Program: Foreword, at 3 (2014),

https://perma.cc/3LVM-6HR3.

Senator Feinstein described her plan for the report in a letter to

the Senate: “[t]he entire classified report will be provided to the

Executive Branch for dissemination to all relevant agencies,” and

“[t]he full report should be used by the Central Intelligence Agency

and other components of the Executive Branch to help make sure that

the system of detention and interrogation described in this report is

15 never repeated.” J.A. at 336. Then, in a letter dated December 10,

2014, Senator Feinstein notified President Obama and the White

House that the Committee had filed a full version of the report with

the Senate and publicly released the declassified version of the

Executive Summary and the Findings and Conclusions. Senator

Feinstein provided the following guidance on how the Executive

Branch should use the report:

[T]he full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure that this experience is never repeated. To help achieve that result, I hope you will encourage use of the full report in the future development of CIA training programs, as well as future guidelines and procedures for all Executive Branch employees, as you see fit.

.

Senator Richard Burr replaced Senator Feinstein as the

Chairman of the Committee in January 2015. On January 14, 2015,

Senator Burr sent a letter to President Obama “request[ing] that all

copies of the full and final report in the possession of the Executive

16 Branch be returned immediately to the Committee.”

. He

stated that because the report is a “highly classified and committee

sensitive document,” “[i]t should not be entered into any Executive

Branch system of records.”

Senator Feinstein, who was then the

Vice Chairman of the Committee, disagreed with Senator Burr’s

stance on the report. In a January 16, 2015, letter to the President,

Senator Feinstein asked the Executive Branch to retain copies of the

classified report “within appropriate Executive branch systems of

record . . . so as to ensure the history of the CIA Detention and

Interrogation Program is available and appropriate lessons can be

learned from it.”

. Senator Feinstein reiterated her desire for

the Executive Branch to retain and review copies of the classified

report in a February 23, 2015, letter to the Secretary of Defense.

On May 13, 2016, the D.C. Circuit decided an appeal involving

FOIA requests that sought disclosure of the draft and final versions

of the report. Am. C.L. Union v. C.I.A.,

(D.C. Cir.

17 2016), cert. denied,

(2017) ("ACLU"). In that case, the

district court granted the agency’s motion to dismiss for lack of

subject matter jurisdiction, finding that the report is a congressional

record outside the scope of FOIA.

. Reviewing the

correspondence between the Committee and the Executive Branch up

through Senator Feinstein’s January 16, 2015, letter to the President,

the D.C. Circuit found that the Committee clearly “inten[ded] to

retain control of the Full Report.”

. Thus, the D.C. Circuit

held that the report qualifies as “a congressional document that is not

subject to disclosure under FOIA,” and affirmed the district court’s

judgment.

at 667–68.

Senator Feinstein’s communications to the Executive Branch

continued. She wrote several letters to various Executive Branch

officials, urging them to retain and review the copies of the classified

report. See J.A. at 341–42 (July 14, 2015, letter to the U.S. Attorney

General);

at 344–45 (November 5, 2015, letter to the U.S. Attorney

18 General and the Director of the FBI). She also wrote letters to

numerous Executive Branch officials regarding the classification of

the report, asking them to (1) determine whether the report is a

“federal record” under relevant statutes, including the Federal

Records Act,

, and the Presidential Records Act,

, (2) deem the report a “federal record” under those

statutes, and/or (3) find that the report qualifies as an “agency record”

under FOIA. See J.A. at 347 (April 13, 2016, letter to the U.S. Attorney

General);

at 349–51 (April 13, 2016, letter to the National Archives

and Records Administration);

(November 21, 2016, letter to

the U.S. Attorney General);

at 355–56 (March 9, 2017, letter to the

U.S. Attorney General). Some of these letters were also signed by

other members of the Committee. See, e.g., J.A. 355–56 (letter signed

by, in addition to Senator Feinstein, Senators Mark Warner, Ron

Wyden, and Martin Heinrich, all minority members of the

Committee).

19 On May 30, 2017, a Committee staffer emailed various agencies,

reiterating Senator Burr’s request for the agencies to return their

copies of the full report that were delivered on December 10, 2014.

Some of the agencies returned their copies, but others did not.

B. Procedural History

i. Cox’s FOIA Requests

On December 21, 2016, Cox filed FOIA requests with the

Agencies. Although Cox’s FOIA requests varied slightly based on the

agency, he generally requested any communications regarding the

handling and transmission of the report, any copies of the draft

versions of the report in whole or in part, and any copies of the final

version of the report in whole or in part (excluding any copies of the

publicly released Executive Summary but including any portions of

the report quoted in agency documents). The Agencies did not

produce any copies of the report based on their position that the

report is not an agency record and therefore not subject to FOIA. As

20 for the remaining requests, some of the Agencies responded that they

required additional time to conduct an adequate search, and the other

Agencies produced some responsive documents but withheld the rest

pursuant to certain exemptions under FOIA.

ii. Cox’s Lawsuit

Dissatisfied with the Agencies’ responses to his FOIA requests,

Cox filed suit on June 2, 2017. Cox’s Second Amended Complaint

(“SAC”), the operative complaint, asserts claims under FOIA, arguing

that the Agencies improperly withheld records responsive to his

FOIA requests. Attached to the SAC are copies of (1) Senator

Feinstein’s December 14, 2012, Letter to the President; (2) Senator

Feinstein’s April 7, 2014, Letter to the President; (3) Senator

Feinstein’s December 10, 2014, Letter to the President; and (4) Cox’s

FOIA requests.

On November 22, 2019, the Agencies moved to dismiss the SAC

with respect to Cox’s FOIA requests for the draft and final copies of

21 the report, and for summary judgment on Cox’s remaining FOIA

requests. The district court (Roslynn R. Mauskopf, District Judge)

denied the motion to dismiss and, in doing so, adopted the D.C.

Circuit’s test for determining whether a document qualifies as an

agency record. See Cox v. Dep’t of Just.,

, 146–49

(E.D.N.Y. 2020). Applying that test, the district court found that the

allegations in and documents appended to the SAC “provide[d]

mixed evidence of the SSCI’s intent to relinquish control over the SSCI

Report,”

, and that therefore it could not conclude that the

report is not an agency record. The district court declined to consider

the June 2, 2009, letter because it was not attached to the SAC.

.

Additionally, the district court granted in part and denied in

part the Agencies’ motion for summary judgment. The district court

found that DOJ, DOD, ODNI, and the Department of State carried

their burden of demonstrating that they properly withheld

22 documents pursuant to exemptions under FOIA but that the FBI

failed to provide an adequate explanation for why it withheld its

documents. The district court noted that the FBI could renew its

motion for summary judgment after supplementing its submissions

in support of the withheld documents.

On May 14, 2021, the Agencies moved for summary judgment

on Cox’s remaining claims, which include his requests for copies of

the draft and final versions of the report, and his request for FBI

documents concerning the handling and transmission of the report.

Cox filed a cross-motion for summary judgment and, in the

alternative, moved for discovery under Federal Rule of Civil

Procedure 56(d) and for the district court to conduct an in camera

review of one redacted FBI document (“Cox-30”).

On March 30, 2022, the district court (Rachel P. Kovner, District

Judge) 1 granted the Agencies’ motion for summary judgment and

1 While the cross-motions for summary judgment were pending, the case was reassigned to Judge Kovner.

23 denied Cox’s motion for summary judgment or, in the alternative, for

discovery. See Cox v. Dep’t of Just., No. 17-CV-3329 (RPK) (RLM),

, at *1 (E.D.N.Y. Mar. 30, 2022). The district court first

addressed the draft and final versions of the report. Applying the

D.C. Circuit test for agency records, the district court concluded that

the draft and final versions of the report are congressional records,

rather than agency records subject to FOIA. The district court relied

heavily on the June 2, 2009, letter to find that the Committee intended

to assert control over the draft and final versions of the report.

Additionally, it concluded that portions of the draft and final versions

of the report that are quoted in agency documents are not subject to

FOIA. As for the FBI documents concerning the handling and

transmission of the report, the district court concluded that the FBI

sufficiently explained its withholding of those documents. Finally,

the district court denied Cox’s request for in camera review, having

found that the FBI adequately explained its redactions to Cox-30, and

24 for discovery, because Cox failed to proffer evidence that undermines

the exemptions claimed by the agencies or to show that the agencies

acted in bad faith by withholding the documents.

This appeal followed.

II. Discussion

On appeal, Cox challenges the district court’s grant of summary

judgment on two grounds. First, he argues that the district court

erred by applying the D.C. Circuit’s test to determine whether the

draft and final versions of the report qualify as agency records.

Second, he argues that the district court erred by concluding that the

draft and final versions of the report are congressional records and

therefore not subject to FOIA, even under the D.C. Circuit’s test. Cox

also challenges the district court’s denial of his request for discovery.

For the reasons below, we affirm the district court’s judgment in all

respects.

25 A. Agency Records

“We review the District Court’s grant of summary judgment as

to the FOIA claims de novo,” Doyle v. U.S. Dep’t of Homeland Sec.,

(2d Cir. 2020), “including the threshold determination of

whether the requested records are ‘agency records’ eligible for

disclosure under [FOIA],” Behar,

(citation omitted).

“When both sides have moved for summary judgment, each party’s

motion is examined on its own merits, and all reasonable inferences

are drawn against the party whose motion is under consideration.”

Rest. L. Ctr. v. City of New York,

(2d Cir. 2024) (quoting

Chandok v. Klessig,

(2d Cir. 2011)). “Summary

judgment ‘is proper only when there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of

26 law.’” Doyle,

(quoting B.C. v. Mount Vernon Sch. Dist.,

(2d Cir. 2016)).

Although Cox is proceeding pro se, he does not receive the

special solicitude typically owed pro se litigants because he “is not a

typical pro se litigant; he is an attorney.” Chevron Corp. v. Donziger,

(2d Cir. 2021); see also Tracy v. Freshwater,

(2d Cir. 2010).

i. Test for Agency Records

“Subject to certain statutory exemptions, FOIA requires federal

agencies to make agency records available to the public upon

request.” Doyle,

; see also

(a)(3)(A), (b).

FOIA authorizes federal courts “to enjoin the agency from

withholding agency records and to order the production of any

agency records improperly withheld from the complainant.”

(a)(4)(B). “When there is a dispute about what qualifies as an

agency record, ‘[t]he burden is on the agency to demonstrate, not the

27 requester to disprove, that the materials sought are not agency

records.’” Doyle,

(quoting U.S. Dep’t of Just. v. Tax

Analysts,

, 142 n.3 (1989)).

Neither FOIA nor its legislative history defines the term

“agency record.”

But FOIA does offer some insight into the scope

of an “agency record” through its definition of “agency,” which is

“‘each authority of the Government of the United States’ except ‘the

Congress,’ ‘the courts of the United States,’ and other bodies

including ‘courts martial and military commissions.’” Behar,

(emphasis added) (quoting

(1)). By excluding those

governmental entities from the definition of “agency,” it follows that

records belonging to those entities do not constitute “agency records”

for the purposes of FOIA. As such, “congressional documents are not

subject to FOIA’s disclosure requirements.” ACLU,

(citation omitted).

28 The Supreme Court has provided further guidance on the

definition of “agency records.” In United States Department of Justice

v. Tax Analysts, the Court explained that agency records are

documents that an agency (1) “either create[s] or obtain[s]” and

(2) “control[s] . . . at the time the FOIA request is made.” 492 U.S. at

144–45 (citation omitted).

At issue here are documents created by Congress and

subsequently transmitted to various agencies. There is no dispute

that the agencies obtained the draft and final versions of the report,

satisfying the first prong of the Tax Analysts test. The central question

before us, then, is whether the agencies controlled the draft and final

versions of the report under the second prong of the Tax Analyst test,

transforming those documents from congressional records into

agency records.

To determine whether such control existed in this case, the

district court applied the D.C. Circuit’s test for control. The D.C.

29 Circuit has set forth a four-factor test “to determine whether an

agency has sufficient control over a document to make it an agency

record,” which requires courts to assess:

[1] the intent of the document’s creator to retain or relinquish control over the records; [2] the ability of the agency to use and dispose of the record as it sees fit; [3] the extent to which agency personnel have read or relied upon the document; and [4] the degree to which the document was integrated into the agency’s record system or files.

Jud. Watch, Inc. v. U.S. Secret Serv.,

(D.C. Cir. 2013)

(internal quotation marks and citation omitted). In cases involving

documents that an agency has either obtained from or prepared in

response to a request from Congress, the D.C. Circuit applies a

modified version of the four-factor test, wherein the first two factors

of the test are “effectively dispositive.”

. The key inquiry in

those cases is this: “whether an agency’s ‘response is subject to FOIA

turns on whether Congress manifested a clear intent to control the

document.’”

(quoting United We Stand Am., Inc. v. I.R.S.,

595, 597 (D.C. Cir. 2004)). Cox refers to the D.C. Circuit’s test for

records originating from Congress as the “intent” test, Appellant’s Br.

at 29, and for convenience, we will do the same.

Cox argues that the district court erred by applying the D.C.

Circuit’s intent test to decide whether the Agencies controlled the

draft and final versions of the report. He argues that under the Tax

Analysts test, control simply means “that the materials have come into

the agency’s possession in the legitimate conduct of its official

duties.” Appellant’s Br. at 24 (quoting Tax Analysts,

).

This argument is squarely foreclosed by our precedent. In Behar, this

Court rejected the contention that mere possession of documents is

sufficient to show control over them and adopted the D.C. Circuit’s

intent test. We made clear: “To determine whether an agency

exercises control over documents obtained from an entity not covered

by the FOIA, we ask whether ‘the non-covered entity . . . has

manifested a clear intent to control the documents, such that the

31 agency is not free to use and dispose of the documents as it sees fit.’”

Id. at 90 (internal quotation marks omitted) (quoting Doyle, 959 F.3d

at 77–78).

We note with some perplexity that Cox did not cite Behar at all

in his opening brief, even though this Court had issued the decision

in that case months earlier. At the time that Cox filed his opening

brief, the mandate had not yet issued in Behar because of a pending

petition for panel rehearing or rehearing en banc. Cox first mentioned

Behar in his reply brief, after the Agencies raised the case in their brief

in opposition. When asked at oral argument why he did not address

Behar from the outset, Cox explained that he thought that the case

might be overturned, or otherwise altered, as a result of the pending

petitions before this Court, or through a later-filed petition for writ of

certiorari with the Supreme Court. See Oral Arg. Audio Recording at

01:33–3:24.

32 Let us be clear: A published opinion, such as Behar, becomes

binding precedent when it is decided. The fact that a mandate has not

yet issued means only that jurisdiction over the case has not yet

shifted back to the district court; it does not undermine the immediate

precedential weight of our decision. We join our sister circuits in

articulating this rule. See In re Zermeno-Gomez,

(9th

Cir. 2017) (“[A] stay of the mandate does not destroy the finality of an

appellate court’s judgment, and . . . a published decision is final for

such purposes as stare decisis, and full faith and credit, unless it is

withdrawn by the court.” (internal quotation marks and citations

omitted)); Martin v. Singletary,

, 945 n.1 (11th Cir. 1992)

(“Although the mandate in [the case] has not yet issued, [the

published opinion] is nonetheless the law in this circuit. A mandate

is the official means of communicating our judgment to the district

court and of returning jurisdiction in a case to the district court.”); see

also Collado v. N.Y.C. Dep’t of Educ., No. 19-CV-2943 (AJN),

918292, at *2 (S.D.N.Y. Mar. 10, 2021) (“The mere fact that a mandate

has not yet issued or that the non-prevailing party intends to petition

for a rehearing does not render the panel decision any less binding.”).

And nothing was changed when the appellee in Behar filed a petition

for rehearing with this Court and later a petition for writ of certiorari

with the Supreme Court. See United States v. Afriyie,

(2d Cir. 2022) (“Published panel decisions . . . are binding on future

panels unless they are ‘reversed en banc or by the Supreme Court.’”

(quoting United States v. Jass,

(2d Cir. 2009))), cert.

denied,

(2022).

There is always a chance that a governing precedent might be

vacated or overruled in the future. But until it is, no matter the

pendency of any petitions for rehearing or for writ of certiorari, a

party must address such an opinion in its briefing. See N.Y. R. Prof’l

Conduct 3.3(a)(2) (laying out an attorney’s ethical obligation “to

disclose to the tribunal controlling legal authority known to the

34 lawyer to be directly adverse to the position of the client and not

disclosed by opposing counsel”); Model Rules of Pro. Conduct r.

3.3(a)(2) (Am. Bar Ass’n) (same).

ii. Application

Cox next contends that, even under the intent test, the district

court erred by finding that the draft and final versions of the report

constitute congressional records not subject to FOIA. We disagree.

The D.C. Circuit has had an opportunity to determine whether

the draft and final versions of the report are agency records under

FOIA. In ACLU, the D.C. Circuit reviewed a record similar to the one

on appeal today, except that the record in the ACLU case ended with

Senator Feinstein’s January 16, 2015, letter to the President and

therefore did not include Senator Feinstein’s communications to the

Executive Branch following the ACLU decision and another of

Senator Burr’s requests to agencies for the return of their copies of the

report. Compare ACLU, 823 F.3d at 659–61, with supra Section I.A.

35 After setting forth the intent test, the D.C. Circuit recognized a

few principles from its past decisions involving documents that

agencies obtained from entities not covered by FOIA. ACLU, 823 F.3d

at 663–64. First, the court explained that “Congress may manifest an

intent to retain control over documents either when the documents

are created or when the documents are transmitted to an agency.” Id.

at 664 (emphases omitted). Conversely, “a ‘post-hoc objection[ ] to

disclosure,’ . . . ‘cannot manifest the clear assertion of congressional

control.’” Id. (quoting United We Stand, 359 F.3d at 602). Second, the

court stated that “if Congress initiates the creation of documents with

a clear statement” of its “intent to maintain exclusive control of the

documents,” then that “congressional intent can only be overcome if

the record reveals that Congress subsequently acted to vitiate the

intent to maintain exclusive control over the documents that was

manifested at the time of the documents’ creation.” Id. Finally, the

court explained that “if ‘Congress has manifested its own intent to

36 retain control, then the agency—by definition—cannot lawfully

“control” the documents.’” Id. (quoting Paisley v. C.I.A.,

(D.C. Cir. 1983), vacated in part on other grounds,

(D.C.

Cir. 1984)). But “if Congress intends to relinquish its control over

documents, then the agency may use them as the agency sees fit.”

Applying the intent test with those principles in mind, the D.C.

Circuit concluded that the Committee intended to retain control of the

report and therefore that the copies of the report were congressional

records not subject to disclosure under FOIA.

at 667–68. The court

found that the June 2, 2009, letter “makes it plain that the Senate

Committee intended to control any and all of its work product,

including the Full Report.” Id. at 665. Rejecting the argument that the

June 2, 2009, letter was intended to govern only those documents

stored on the CIA’s segregated network drive or kept in the CIA’s

Reading Room, the court observed that the letter explicitly applies to

all documents as well as any materials generated by Committee staff.

37 See id. Additionally, the court found that Senator Feinstein’s

transmittal letters did not vitiate congressional intent to control the

report established by the June 2, 2009, letter. See id. at 666–67.

We are persuaded by our sister circuit’s reasoning, which

should come as no surprise given that we are applying the same test

to a nearly identical set of facts. Specifically, we apply the test set

forth in Behar, which requires us to “ask whether the non-covered

entity . . . has manifested a clear intent to control the documents, such

that the agency is not free to use and dispose of the documents as it

sees fit.”

(internal quotation marks and citation

omitted).

Like the D.C. Circuit, we conclude that the Committee

“manifested a clear intent to control,”

the draft and final versions

of the report through its June 2, 2009, letter. The letter provides that

“[a]ny documents generated on the network drive . . . as well as any

other notes, documents, draft and final recommendations, reports or

38 other materials generated by Committee staff or Members, are the

property of the Committee.” J.A. at 29. The letter contains no

temporal limitations on the Committee’s control over the documents,

stating that “[t]hese documents remain congressional records in their

entirety and disposition and control over these records, even after the

completion of the Committee’s review, lies exclusively with the

Committee.”

And if it was not clear already, the letter explicitly

states that these documents are “not CIA records” under FOIA.

It

is difficult to imagine a clearer manifestation of an intent to control

documents than the one expressed in the June 2, 2009, letter.

Cox argues, however, that the June 2, 2009, letter is irrelevant

because the letter governs only the Committee’s work product in the

Reading Room and applies only to the CIA. Cox’s argument is belied

by the explicit language of the June 2, 2009, letter. As stated above,

the letter covers any documents generated on the network drive as

well as any materials generated by the Committee staff. The letter’s

39 provision is expansive—it contains no limitation to work product in

the Reading Room or to documents exchanged with the CIA.

Cox further argues that there was “no factual nexus” between

the June 2, 2009, letter and the draft and final versions of the report

sent to the Agencies. Appellant’s Br. at 47. This argument is

unpersuasive. Again, the letter clearly subjects the draft and final

versions of the report to its protections. See J.A. at 29 (“[A]ny other

notes, documents, draft and final recommendations, reports or other

materials generated by Committee staff or Members, are the property

of the Committee . . . .”). There is no requirement that the

Committee’s subsequent letters reference the June 2, 2009, letter for

the Committee to maintain control over the report.

Having found that the Committee “manifested a clear intent to

control,” Behar,

(citation omitted), the report, we turn to

the question of whether the Committee “subsequently acted to vitiate

the intent to maintain exclusive control over the documents that was

40 manifested at the time of the documents’ creation,” ACLU,

. To answer this question, we look to evidence concerning the

report’s transmittal. See

(“Congress may manifest an intent to

retain control over documents either when the documents are created

or when the documents are transmitted to an agency.” (emphases

omitted)). There are three transmittal letters accompanying the

various versions of the report: (1) Senator Feinstein’s December 14,

2012, letter to the President notifying him that the Committee

completed a draft of the report; (2) Senator Feinstein’s April 7, 2014,

letter to the President notifying him that the Committee updated a

draft of the report with comments from the Executive Branch; and (3)

Senator Feinstein’s December 10, 2014, letter to the President

notifying him that the Committee completed a final version of the

report.

None of the transmittal letters effectively retract the strong

congressional intent to control the draft and final versions of the

41 report expressed in the June 2, 2009, letter. In the December 14, 2012,

letter, Senator Feinstein stated that she would send copies of the draft

report to “appropriate” agencies and asked the White House to solicit

comments from those agencies. J.A. 201. She further stated that after

receiving comments, she “intend[ed] to present this report with any

accepted changes again to the Committee to consider how to handle

any public release of the report, in full or otherwise.”

This letter

clearly demonstrates that the Committee maintained control over the

report. Through the letter, the Committee dictated which agencies

received the report, the Executive Branch’s use of the report, and the

contents and disposition of the report.

In the April 7, 2014, letter, Senator Feinstein explained that the

Committee voted to declassify the Executive Summary and the

Findings and Conclusions. Senator Feinstein also wrote that she

“encourage[d] and approve[d] the dissemination of the updated

report to all relevant Executive Branch agencies.”

at 20–21.

42 Although this letter gives the Executive Branch some ability to make

use of the report, it nevertheless does not vitiate the Committee’s

intent to control it. The letter granted discretion to the President to

disseminate the report to relevant agencies. But “[a]ffording

discretion . . . is not the same as surrendering control.” Cox,

, at *8. The fact that the Committee decided to declassify

certain portions of the report for publication but not others

demonstrates that it still maintained control over the report.

The December 10, 2014, letter is the closest the Committee came

to relinquishing its control over the report. In that letter, Senator

Feinstein wrote that “the full report should be made available within

the CIA and other components of the Executive Branch for use as

broadly as appropriate to help make sure that this experience is never

repeated.”

. Additionally, Senator Feinstein encouraged the

President to use the report to inform the training and procedures for

Executive Branch employees, as the President “see[s] fit.”

.

43 Although broad, the discretion afforded to the President is not clearly

unfettered. The letter allows the report to be circulated and used as

the President sees fit within the Executive Branch, but does not clearly

address whether the report may be disseminated outside of the

Executive Branch to, for example, the public. To the extent the letter

is ambiguous over who retains full power over the ultimate

disposition of the report, it is not strong enough evidence to vitiate

the unambiguous expression of congressional intent from the June 2,

2009, letter. So again, we cannot conclude that this letter vitiated the

Committee’s intent to control the report.

Cox argues that letters following the ACLU decision sent by

Senator Feinstein, as well as several other minority members of the

Committee, confirm that the Committee did not intend to retain

control over the copies of the report. But these letters do not represent

the Committee’s official position on the ownership of the report.

Rather, they merely convey the opinions of less than a majority of

44 individual members of the Committee. Thus, it hardly can be said

that the Committee acted through these letters to vitiate its initial

intent to exercise control over the report.

To the extent that Cox argues that Senator Feinstein clarified

the Committee’s intent at the time of creation and transmission of the

report through those letters, that argument is unpersuasive. The

Committee’s contemporaneous communications during the creation

and transmission of the draft and final versions of the report speak

for themselves. And post-hoc elaborations on what is said in those

communications cannot usurp the Committee’s clear assertion of

congressional control at the time of creation and transmission. Cf.

ACLU,

(“[A] ‘post-hoc objection[] to disclosure,’ . . .

‘cannot manifest the clear assertion of congressional control.’”

(quoting United We Stand, 359 F.3d at 602)).

In sum, the record shows that Congress “manifested a clear

intent to control the [draft and final versions of the report], such that

45 the agenc[ies] [are] not free to use and dispose of the documents as

[they] see[] fit.” Behar,

(citation omitted). Nothing in

the record demonstrates that the Committee ever acted to vitiate that

clear intent. Thus, the district court properly found that the draft and

final versions of the report are congressional records not subject to

FOIA disclosure requirements.

B. Cox’s Request for Discovery

Cox also contends that the district court improperly denied his

request for discovery because he did not make a showing of bad faith.

He argues that such a showing is unnecessary under the Federal Rules

of Civil Procedure or FOIA. We review the denial of Rule 56(d)

discovery for abuse of discretion. See Elliott v. Cartagena,

(2d Cir. 2023).

Cox misconstrues the district court’s holding. The district court

did not deny discovery solely on the basis that Cox failed to

demonstrate the Agencies’ bad faith. Rather, the district court set

46 forth the proper standard for determining whether discovery is

warranted in FOIA cases:

In order to justify discovery once the agency has satisfied its burden, the plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the agency’s affidavits or declarations, or provide some tangible evidence that an exemption claimed by the agency should not apply or summary judgment is otherwise inappropriate.

Carney v. U.S. Dep’t of Just.,

(2d Cir. 1994) (citations

omitted). The district court held that Cox failed to satisfy that

standard because he did not identify “contrary evidence” or evidence

“suggestive of bad faith.” Cox,

, at *14 (citation

omitted). Additionally, the district court had already found that Cox

failed to demonstrate that summary judgment was inappropriate.

Cox maintains that he did present evidence demonstrating bad

faith, citing letters from Senator Feinstein that, in his view,

contradicted the district court’s interpretation of the June 2, 2009,

Letter. This contention merely repackages Cox’s arguments

concerning the district court’s summary judgment ruling on the draft

47 and final versions of the report. And for the reasons set forth above,

we find those arguments to be without merit.

III. Conclusion

Our holding today reaffirms the appropriate test for

determining whether documents in an agency’s possession that were

obtained from an entity not covered by FOIA constitute agency

records. It also sets the framework for analyzing whether an agency

exercises control over documents originating from Congress in

particular.

In sum, we hold as follows:

(1) A published opinion becomes binding precedent when it is

decided, regardless of whether the mandate has issued or of

any pending petitions for rehearing or for writ of certiorari.

It remains so until it is vacated or overruled.

(2) As stated in Behar, to determine whether an agency exercises

control over documents obtained from an entity not covered

by FOIA, courts must ask whether the non-covered entity

48 has manifested a clear intent to control the documents, such

that the agency is not free to use and dispose of the

documents as it sees fit.

(3) Under Behar, an entity not covered by FOIA may manifest

an intent to retain control over documents either when the

documents are created or when the documents are

transmitted to a covered agency. We first look to whether

the non-covered entity initiated the creation of documents

with a clear statement of its intent to maintain exclusive

control of the documents. If it did, then that intent can only

be overcome if the record reveals that the entity

subsequently acted to vitiate the intent to maintain exclusive

control over the documents that was manifested at the time

of the documents’ creation.

(4) The Committee manifested a clear intent to control the draft

and final versions of the report through its June 2, 2009,

49 letter, and Senator Feinstein’s transmittal letters did not

vitiate that strong congressional intent.

(5) The district court did not abuse its discretion by denying

discovery because Cox did not adduce evidence of bad faith

on the part of the Agencies, that a FOIA exemption claimed

was improper, or that summary judgment was

inappropriate.

We therefore AFFIRM the district court’s judgment.

50