Unpublished Dispositionvietnam Veterans of America, et al., Appellants, v. Department of the Navy, et al, 875 F.2d 350 (D.C. Cir. 1989)

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US Court of Appeals for the District of Columbia Circuit - 875 F.2d 350 (D.C. Cir. 1989) May 24, 1989

Before MIKVA, HARRY T. EDWARDS and BUCKLEY, Circuit Judges.



This case was considered on the record on appeal from the United States District Court for the District of Columbia and on the briefs filed by the parties and argument by counsel. The issues have been accorded full consideration by the court and occasion no need for a published opinion. See D.C. Cir. Rule 14(c). The documents sought by appellants do not contain statements of policy or interpretations adopted by the Department of the Army or the Department of the Navy, and therefore do not fall within 5 U.S.C. § 552(a) (1) or (2). We do not reach the question of whether appellants are entitled to access to these documents under 5 U.S.C. § 552(a) (3), because no request under that provision of the Freedom of Information Act is before us.

The cases cited by appellants in support of their appeal are distinguishable. In Schlefer v. United States, 702 F.2d 233 (D.C. Cir. 1983), the agency counsel opinions at issue operated as law, even though an officer requesting an opinion had the power to make his own decision, because any decision based on statutory interpretations had to be cleared with the Chief Counsel and the Chief Counsel would not clear action inconsistent with its advisory opinions. Schlefer, 702 F.2d at 238. In Taxation With Representation v. Internal Revenue Service, 646 F.2d 666 (D.C. Cir. 1981), the agency counsel opinions for which access was sought stated policies and interpretations adopted by the agency because they had been rewritten to reflect the positions taken in final rulings by the officers with the authority to make those rulings. Taxation With Representation, 646 F.2d at 669-70. In Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980), the agency counsel opinions at issue operated as law because an auditor requesting an opinion was not empowered to disregard it. If he disagreed with an opinion that covered the factual situation before him, his only recourse was to appeal the matter to a higher authority within the agency. Coastal States, 617 F.2d at 860.

The district court did fail to review the Department of the Army documents submitted by appellants because it misperceived appellants' discovery request as to the Army's documents; however, the evidence relied on by the district court as to both the Army and the Navy was sufficient to warrant summary judgment. Thus, it is

ORDERED and ADJUDGED that the order of the district court be affirmed. It is

FURTHER ORDERED, by the court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15. This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.