author: ROGERS, Circuit Judge:

text:
    UNITED STATES of America, Appellee v. David VYNER, Appellant
    No. 14-3091
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 15, 2016
    Decided January 27, 2017

      Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Tony Axam Jr.', Assistant Federal Public Defender, entered an appearance,
    David P. Saybolt, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was Elizabeth Trosman, Assistant U.S. Attorney.
    Before: ROGERS, BROWN  and MILLETT, Circuit Judges.

        Circuit Judge Brown concurs in the judgment.

   ROGERS, Circuit Judge:

On appeal from his conviction upon entering a guilty plea to violating 18 U.S.C. § 1546(a), David Vyner contends that he was denied his right to the effective assistance of counsel under the Sixth Amendment to the Constitution. Section 1546(a) penalizes the knowing possession of an altered document prescribed by statute or regulation for entry into the United States. Vyner admitted he knowingly possessed an altered foreign passport but contends that Section 1546(a) covers only documents issued by the United States, not by foreign governments. Alternatively, even if Section 1546(a) contemplates foreign documents, he contends that the altered foreign passport he possessed had already expired and the statutes and regulations governing entry into the United States call for an unexpired passport. Vyner, therefore, concludes that his counsel’s failure to advise him that his conduct did not satisfy the elements of the crime charged and counsel’s advice to plead guilty fall below the constitutional standard of reasonable competence. Had he known his conduct did not satisfy the elements of Section 1546(a), Vyner asserts that he would not have pled guilty.

For the following reasons, we conclude Vyner has failed to show that his counsel’s conduct at the time of his plea fell below the standard of reasonable competence under the first prong of Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and therefore we do not reach the prejudice prong. Although an open question in this circuit, two circuit courts of appeal had held prior to Vyner’s plea that Section 1546(a) covers foreign passports, and no circuit court had held to the contrary. Under the rule of contemporary assessment, see id. at 690, 104 S.Ct. 2052, counsel had reason to conclude Section 1546(a) encompasses foreign passports. Similarly, reasonably competent counsel could have understood Section 1546(a), in view of its statutory and regulatory predicates, to criminalize the knowing possession of an altered foreign passport that had expired. And by advising a guilty plea, pursuant to a plea agreement with the government, counsel ensured that Vyner avoided a mandatory two-year sentence on the count that the government agreed to dismiss in exchange for Vyner’s plea to a count with fourteen months’ maximum imprisonment under the Sentencing Guidelines. Accordingly, we affirm.

I.

In 2011, Vyner was indicted in Count 1, for fraud and misuse of visas, permits, and other documents in violation of 18 U.S.C. § 1546(a), and in Count 2, for aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(l). In April 2014, he pled guilty to Count 1, and in accordance with the parties’ plea agreement, the government dismissed Count 2, which carried a mandatory sentence of two years’ imprisonment, 18 U.S.C. § 1028A(a)(l).

At the plea hearing pursuant to Federal Rule of Criminal Procedure 11, Vyner agreed to the government’s proffer of undisputed facts. See Plea Tr. 12-13 (Apr. 25, 2014). As relevant, the proffer stated that on December 28, 2010, Deputy United States Marshals went to a Washington D.C. hotel, where Vyner had reserved a room, in order to execute an arrest warrant issued by a judge of the Circuit Court of Broward County, Florida. The Marshals arrested Vyner in the hotel lobby and secured his hotel room. Upon obtaining a search warrant, federal Diplomatic Security Service agents seized from Vyner’s hotel room an Albanian diplomatic passport issued in the name of Adrian Shima, the former Second Secretary to the Albanian Embassy in Washington, D.C., and bearing a passport photograph of Vyner. The passport contained an expiration date of January 25, 2010, and a stamped entry of “VALID UNTIL DEC 2015” in an area intended to show the passport’s renewed validity date. The agents also seized a rubber stamp that left an imprint identical to the stamp on Mr. Shima’s passport, as well as inkpads, an X-ACTO knife, a metal-edged ruler, laminating materials, a counterfeit test pen, glue sticks, and a sheet of passport photographs of Vyner (with one photograph missing) identical to the photograph in Mr. Shima’s passport. Vyner admitted that he knew Mr. Shima’s expired passport had been altered because Mr. Shima’s photograph had been removed and replaced with a photograph of himself and agreed that this evidence established beyond a reasonable doubt that he knowingly possessed, without lawful authority, an altered Albanian diplomatic passport.

The district court accepted Vyner’s plea to Count 1, and sentenced him to 364 days’ imprisonment. Vyner appeals the judgment of conviction, contending that his trial counsel provided constitutionally deficient advice and that he was prejudiced as a result. Our review of his ineffective assistance of counsel challenge is de novo. United States v. Abney, 812 F.3d 1079, 1086-87 (D.C. Cir. 2016); see United States v. Nwoye, 824 F.3d 1129, 1134-35 (D.C. Cir. 2016).

II.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,

[a] convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052; see United States v. Toms, 396 F.3d 427, 432 (D.C. Cir. 2006). This standard also applies to “ineffective-assistance claims arising out of the plea process.” Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

To establish deficient performance, the defendant must demonstrate that counsel’s advice was not “within the range of competence demanded of attorneys in criminal cases.” Id. at 56, 106 S.Ct. 366 (quotation omitted). The issue is to be assessed as of the time of counsel’s challenged conduct and without “the distorting effects of hindsight.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Indeed, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (citation omitted). And where “the record does not explicitly disclose ... counsel’s actual strategy or lack thereof ..., the presumption may only be rebutted through a showing that no sound strategy posited by ... [the government] could have supported the conduct.” United States v. Abney, 812 F.3d 1079, 1087 (D.C. Cir. 2016) (quoting Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005) (citing Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003))).

Section 1546(a) appears in Chapter 75, “Passports and Visas,” and subjects criminal penalties to whoever:

[Kjnowingly forges, counterfeits, alters, or falsely makes any immigrant or non-immigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained.

18 U.S.C. § 1546(a) (emphases added). The italicized words were enacted in 1986, when Congress amended Section 1546(a) “to expand its reach.” United States v. Ryan-Webster, 353 F.3d 353, 362 (4th Cir. 2003) (citing H.R. Rep. No. 99-682(1), at 94 (1986); S. Rep. No. 99-132, at 31 (1985)). Previously, Section 1546(a) had referred to any immigrant or non-immigrant visa, permit, or other document “required for entry into the United States,” 18 U.S.C. § 1546(a) (1985), and courts had strictly construed the statute, at times concluding the statute did not cover certain documents relating to immigration and border control. For example, the Supreme Court held that the statute did not cover alien registration receipt cards because such documents may “be used for re-entry” in some instances but “are not required for entry,” United States v. Campos-Serrano, 404 U.S. 293, 298, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971), and a federal district court ruled the statute did not apply to foreign passports because unlike visas or permits, the primary purpose of foreign passports was not the “facilitation of entry into the United States,” United States v. Vargas, 380 F.Supp. 1162, 1168 (E.D.N.Y. 1974). The current version of Section 1546(a) requires, as relevant, the government to prove (1) the defendant knowingly possesses a document, (2) knowing it to be forged, counterfeited, altered, or falsely made, and (3) the document is prescribed by statute or regulation for entry into the United States.

A.

Vyner does not contest that he possessed the Albanian passport or that it was “altered” within the meaning of Section 1546(a). Instead, he contends that the altered Albanian passport is not a document “prescribed by statute or regulation” for entry because it was not issued by the United States. This court has not addressed the question of statutory interpretation, and it is unnecessary to do so now. The question presented by Vyner’s appeal is whether his trial counsel’s performance was “deficient,” Strickland, 466 U.S. at 687, 104 S.Ct. 2052, which hinges on whether it was reasonable for counsel to advise Vyner to plead guilty to Count 1 rather than challenge the government’s interpretation of Section 1546(a).

At the time Vyner pled guilty, two federal courts of appeal had interpreted the clause “other documents prescribed by statute or regulations for entry into ... the United States,” 18 U.S.C. § 1546(a), to include foreign passports, making the knowing possession of an altered foreign passport a crime under Section 1546(a), even if the statute is strictly construed. No other federal courts of appeal had held to the contrary. In United States v. Rahman, 189 F.3d 88 (2d Cir. 1999), the Second Circuit held that “a passport issued by a foreign government is clearly a document ‘prescribed by statute or regulation for entry into the United States,’ and knowing possession of a forged or altered foreign passport is an offense under the plain meaning of Section 1546(a).” Id. at 119. Similarly, the Fifth Circuit had held in United States v. Osiemi, 980 F.2d 344 (5th Cir. 1993), that because “a foreign passport is clearly, and typically, one document ‘prescribed by statute or regulation for entry’ into the United States[,] [t]he possession of a counterfeit or altered foreign passport ... is an offense under the plain language of § 1546(a).” Id. at 346. Both courts relied on 8 U.S.C. § 1181(a), a statutory predicate for the Section 1546(a) offense, which provides that “no immigrant shall be admitted into the United States unless ... he ... presents a valid unexpired passport or other suitable travel document.” See Rahman, 189 F.3d at 118-19; Osiemi, 980 F.2d at 346. These courts also looked to federal regulations, similarly predicates for the Section 1546(a) offense, which require certain aliens to present a “valid unexpired visa ... and an unexpired passport,” 8 C.F.R. § 212.1, as well as “a valid passport with an expiration date of at least 60 days beyond the expiration date of the immigrant’s visa,” for entry into the United States, Osiemi, 980 F.2d at 346 (citing 8 C.F.R. § 211.2(a)); see also Rahman, 189 F.3d at 119. Because “the passports referred to in [8 U.S.C. § 1181(a) and 8 C.F.R. §§ 211.2(a), 212.1] are necessarily ones issued by foreign governments,” Rahman, 189 F.3d at 119 (citing 22 C.F.R. §§ 51.2(a), 51.3(a)-(c), 51.80(a)), the Second and Fifth Circuits concluded that foreign-issued passports are prescribed by statute or regulation for entry into the United States within Section 1546(a)’s plain meaning. Rahman, 189 F.3d at 119; Osiemi, 980 F.2d at 346.

Still, Vyner maintains that he was denied effective assistance of counsel because a foreign passport is not a document “prescribed by statute or regulation” for entry into the United States. Emphasizing that “penal statutes are to be construed strictly,” Appellant’s Br. 8 (quoting United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971)), he points out that courts had held that Section 1546(a) does not apply to foreign passports because the statute refers only to entry documents issued by the United States. See id. at 9, 124 S.Ct. 1 (citing, for example, United States v. Restrepo-Granda, 575 F.2d 524 (5th Cir. 1978); United States v. Vargas, 380 F.Supp. 1162 (E.D.N.Y. 1974)). He further maintains that while Congress has since “amended § 1546(a) to include specific U.S.-issued documents—border crossing cards and alien registration receipt cards—... [it] has never amended the statute to include foreign-issued documents, such as passports.” Id. Both the Second and Fifth Circuits focused on amended Section 1546(a)’s broad incorporation of immigration documents, and concluded that these “pre-1986 cases ... are not helpful to [defendant’s] argument,” Osiemi, 980 F.2d at 346, because “[r]egardless of whether a foreign passport was or was not a document required for entry into the United States before the 1986 amendment, the 1986 amendment expanded the [statute’s] language,” id. at 347 (emphasis in original); see Rahman, 189 F.3d at 119. Vyner does not explain why the Second and Fifth Circuits’ treatment of these pre-1986 cases is flawed and proffers nothing to suggest these interpretations were being challenged by other defense counsel at the time of his plea, let alone being called into question by a court. Indeed, the lone post-1986 case Vyner cites, United States v. Fox, 766 F.Supp. 569, 572 (N.D. Tex. 1991), which ruled that a passport from a non-existent country was not a “document” covered by Section 1546(a), not only addressed a different interpretative question than that facing Vyner’s trial counsel, but in Osiemi, 980 F.2d at 347-48, the Fifth Circuit overruled Fox “to the extent that it [was] inconsistent” with the conclusion that Section 1546(a) “proscribe^] possession of a counterfeit passport ... issued by a foreign government.”

Last year, the Ninth Circuit held in United States v. Thomsen, 830 F.3d 1049 (9th Cir. 2016), that Section 1546(a) does not apply to United States passports. The court noted that, by contrast with Section 1543, which penalizes “[w]hoever falsely makes, forges, counterfeits, mutilates, or alters any passport or instrument purporting to be a passport,” 18 U.S.C. § 1543, “the words ‘passport’ and ‘passport card’ are conspicuous by their absence from § 1546(a),” Thomsen, 830 at 1061. Indeed, the court observed that Section 1546(a) “is the only statute in the group of statutes [in Chapter 75] relating to ‘passports and visas’ that does not contain the word ‘passport.’” Id. This omission confirmed the court’s interpretation that Section 1546(a) does not cover U.S. passports. Id. at 1061-62. Vyner views Thomsen to support his position that Section 1548’s explicit reference to the word “passport” and its corresponding absence from Section 1546(a) indicates that Section 1546(a) should be interpreted also to exclude passports issued by foreign governments. After all, when Congress “wants to penalize misuse of passports it knows how to do so.” Reply Br. 2.

But Vyner’s view that Thomsen supports his interpretation of Section 1546(a) is not well taken. First, the Ninth Circuit’s opinion concerns U.S. passports, not foreign passports, and does not necessarily conflict with the interpretation of Section 1546(a) by the Second and Fifth Circuits. In Thomsen, 830 F.3d at 1061, the Ninth Circuit interpreted Section 1546(a) to apply only to “immigration-related documents” that an alien would use, and because U.S. passports are not issued to aliens but “to United States citizens for travel abroad and reentry,” id. at 1059 n.5, they were not related to immigration and therefore not covered by the statute. In contrast, the Second and Fifth Circuits analyzed statutory and regulatory predicates for the Section 1546(a) offense that relate to foreign-issued passports, which unlike U.S. passports, are issued to and used by aliens. In Thomsen, the Ninth Circuit did not mention these provisions or Rahman or Osiemi, all of which are on point in Vyner’s case.

Second, even assuming Thomsen conflicts with the other circuit court decisions would not show that Vyner’s counsel rendered “deficient” assistance under Strickland. The Supreme Court applies the rule of contemporary assessment in evaluating claims of ineffective assistance of counsel. See Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Strickland, 466 U.S. at 690, 104 S.Ct. 2052; see also Maryland v. Kulbicki, — U.S. -, 136 S.Ct. 2, 4, — L.Ed.2d - (2015). Given the state of the law at the time and the government’s conditional agreement to dismiss Count 2, the decision of Vyner’s counsel to leave the government’s interpretation of Section 1546(a) unchallenged does not show that counsel’s conduct was “deficient.” Moreover, Vyner has proffered nothing to show that defense counsel at the time of his plea were commonly or successfully challenging the interpretation of Section 1546(a) by the Second and Fifth Circuits, a showing that could strengthen his position that counsel’s conduct fell below “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052; see Abney, 812 F.3d at 1088-89; United States v. Fields, 565 F.3d 290, 298 (5th Cir. 2009). Lastly, Vyner’s suggestion during a colloquy with the court that he should have been charged under Section 1543, not Section 1546(a), Oral Arg. Tr. 40:18-22, does not show that reasonably competent counsel could not have concluded his client’s knowing possession of the altered foreign passport also violated Section 1546(a), which alone bans possession of an altered immigration document.

B.

The statutory and regulatory predicates for the Section 1546(a) offense that identify foreign passports as documents used for entry into the United States require that the passports be “valid” and “unexpired.” 8 U.S.C. § 1181(a); 8 C.F.R. §§ 211.2(a), 212.1. Vyner contends that because the altered passport in his possession had expired eleven months before his arrest, his conduct did not violate Section 1546(a). The government does not dispute that the “VALID UNTIL DEC 2015” stamp failed to extend the passport’s expiration date for lack of the required signature of the Consular office and the Albanian seal. See Appellee’s Br. 14; Ltr., Arian Spasse, Consular Offr., Emb. of Rep. of Alb., to Spec. Agt. Charles Cashion (Jan. 6, 2011). Vyner’s alternative statutory contention nonetheless fails.

Even assuming an “altered” passport could, in its original form, be both “valid” and “unexpired,” the same is not true of foreign passports that are “counterfeit, forged, or falsely made” under Section 1546(a) because they are by definition not “valid.” Vyner’s interpretation that a fraudulent foreign passport must also be “valid” and “unexpired” in order to be covered by Section 1546(a) would therefore not only make lawful the knowing possession of an altered and expired foreign passport but, by logical extension, also the knowing possession of a counterfeit foreign passport. See Appellee’s Br. 13. Vyner offers no reason that Section 1546(a) must necessarily be interpreted, or even should be interpreted, to prohibit possession of an altered, unexpired foreign passport while allowing possession of a counterfeit foreign passport. His interpretation conflicts with the interpretation by the Second and Fifth Circuits that Section 1546(a) plainly “criminalize[s] the knowing possession of any counterfeit or altered [immigration] document[s],” which includes “[f]oreign passports.” Osiemi, 980 F.2d at 348; see also Rahman, 189 F.3d at 119. It is also contrary to the presumption against construing a statute to render it ineffective in whole or in part. See, e.g., FTC v. Manager, Retail Credit Co., Miami Branch Office, 515 F.2d 988, 994 (D.C. Cir. 1975); see also Wilderness Soc’y v. Morton, 479 F.2d 842, 855 (D.C. Cir. 1973). Although Vyner’s interpretation may be plausible, on this record there is no persuasive reason to conclude that his counsel was constitutionally deficient for following the Second and Fifth Circuits’ more expansive interpretation of Section 1546(a) and declining to interpret the statute in a way that would frustrate its embrace of the laws governing entry into the United States.

Finally, “[p]lea bargains are the result of complex negotiations, ... [where] defense attorneys must make careful strategic choices in balancing opportunities and risks,” Premo v. Moore, 562 U.S. 115, 124, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011), including “pleading to a lesser charge and obtaining a lesser sentence,” id. This dynamic “make[s] strict adherence to the Strickland standard all the more essential when reviewing the choices an attorney made at the plea bargain stage.” Id. at 125, 131 S.Ct. 733. As a condition of Vyner’s guilty plea to Count 1, the government agreed to dismiss Count 2, which carried a two-year mandatory prison sentence, 18 U.S.C. § 1028A(a)(1); the Guideline sentencing range for Count 1 was 8 to 14 months. Of course, counsel who successfully bargains for the dismissal of charges during plea negotiations is not immunized from being determined constitutionally deficient on other grounds. Cf., e.g., Gonzalez v. United States, 722 F.3d 118, 119-124 (2d Cir. 2013); United States v. Iberson, 705 F.Supp.2d 504, 507-09 (W.D. Va. 2010). Counsel’s assistance to Vyner, however, was well within the bounds of the competence required of counsel in criminal cases in view of the sole and prevailing interpretation in the federal circuit courts of appeal, the plain text of Section 1546(a)’s statutory and regulatory predicates, and the absence of challenges to those interpretations at the time of Vyner’s guilty plea.

Accordingly, we hold, based on the district court record, see United States v. Rashad, 331 F.3d 908, 910 (D.C. Cir. 2003), and without a need to consider the prejudice prong of the Strickland standard, that Vyner has failed to meet his burden under Strickland to show that no competent counsel could reasonably conclude that Vyner’s undisputed conduct constituted a violation of Section 1546(a), much less reasonably advise Vyner to plead guilty to Count 1, and we affirm.


source: Caselaw Access Project

author: RANDOLPH, Senior Circuit Judge:

license: Public Domain

text:
    CONTINENTAL RESOURCES, INC., Appellant v. Sally JEWELL, Secretary, United States Department of the Interior, et al., Appellees
    No. 15-5333
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 25, 2016
    Decided January 31, 2017
    L. Poe Leggette argued the cause for Appellant. With him on the briefs were Rosario C. Doriott Domínguez and Alexander K. Obrecht, Denver, CO.
    Tamara N. Rountree, Attorney, U.S. Department of Justice, argued the cause for Appellees. With her on the brief were John C. Cruden, Assistant Attorney General, and David Gunter, Attorney.
    Before: BROWN and SRINIVASAN, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
   RANDOLPH, Senior Circuit Judge:

The district court dismissed as untimely an action Continental Resources, Inc. brought for judicial review of a decision of the Department of the Interior. Cont’l Res., Inc. v. Jewell, 134 F.Supp.3d 231, 237 (D.D.C. 2015). The question on appeal is whether, as the district court ruled, Continental filed its action more than 180 days after its “receipt of notice” of Interior’s “final decision.” 30 U.S.C. § 1724(j) & (h)(2)(B).

Continental extracts gas from leased federal land and pays royalties to the Interior Department. On May 5, 2010, an agency within the Interior Department began an administrative proceeding against Continental by issuing an order demanding more than $1.7 million in additional royalties. Continental took an administrative appeal to the agency’s director. From the date of the agency’s order, the Secretary or a designee had thirty-three months to reach a final decision in this matter. See 30 U.S.C. § 1724(h)(1) & (2); Murphy Exploration and Production Co. v. U.S. Dep’t of Interior, 252 F.3d 473, 480-82 (D.C. Cir. 2001). Under § 1724(h)(2)(B), if the Secretary fails to reach a final decision within that time, the Secretary “shall be deemed to have issued a final decision” against the lessee when the amount in controversy is $10,000 or more, as it was here. 30 U.S.C. § 1724(h)(2)(B).

“The 33-month period may be extended by any period of time agreed upon in writing by the Secretary and the appellant.” Id. § 1724(h)(1). In July 2010, Continental and the Interior agency entered into such an extension agreement, placing Continental’s appeal “on hold from June 12, 2010 through December 13, 2010, pending completion of settlement discussions.” Joint Appendix 151. Extension agreements are apparently common. See Agency’s Mot. for Recons. 7-10, Cont’l Res., Inc. v. Jewell, No. 1:14-cv-00065-RDM (D.D.C. Sept. 25, 2013), ECF No. 21-3. Continental’s written agreement also stated that the parties extended “for the same number of days the 33-month time frame for processing appeals as set out in 30 U.S.C. 1724(h)(1),” but that either party could terminate the agreement. Joint Appendix 151. Approximately three weeks later, on August 18, 2010, the Interior agency informed Continental that it had decided not to enter into settlement negotiations.

In April 2013, Continental received an unfavorable decision from the agency’s director. The company filed an administrative appeal to the Interior Board of Land Appeals. The Board, concerned about its jurisdiction, issued a show-cause order questioning whether the “deemed final” provision had already been triggered, thus ending all administrative proceedings with a final decision of the Secretary. In response, Continental argued that the August 2010 letter from the Interior agency terminated their extension agreement and that the deadline for the Secretary’s decision therefore passed on June 15, 2013. Interior argued that the letter had not terminated the extension agreement and that the deadline would not be reached until August 12, 2013. In a five-page opinion, the Board ruled that the deadline passed on June 17, 2013, at which time the Secretary’s non-decision became “deemed final.” Cont’l Res., Inc., 184 IBLA 59, 64 (2013). The Board issued its opinion on July 29, 2013.

Under 30 U.S.C. § 1724(j), Continental had 180 days from “receipt of notice” of the final agency action to file its complaint. Continental filed the complaint in the district court on January 16, 2014. Interior moved to dismiss it, arguing that the complaint was untimely because more than 180 days had passed from the date of the Secretary’s “deemed final decision,” which Interior identified as June 17, 2013, the date given in the opinion of the Board of Land Appeals. The district court agreed and dismissed Continental’s complaint. Cont’l Res., 134 F.Supp.3d at 237.

Did the 180-day period begin on June 17, 2013, as Interior argued and the district court decided, or on July 29, 2013, the date of the Board’s decision, as Continental argued? If June 17, Continental’s complaint is time-barred; if July 29, the complaint is timely.

In answering this question we understand that the 180-day period for seeking judicial review did not run from the date of final agency action. The 180-day period ran instead from the date Continental received notice of that action. Section 1724(j) is quite clear about this. The provision states that “a judicial proceeding challenging the final agency action” is “timely so long as such judicial proceeding is commenced within 180 days from receipt of notice by the lessee or its designee of the final agency action.” 30 U.S.C. § 1724®.

So when did Continental receive notice of the Secretary’s “deemed final” decision? The date of notice could not possibly have been earlier than the ruling of the Board of Land Appeals on July 29, 2013. Until then neither Continental nor Interior could know what date the Board would designate as the date of the Secretary’s final decision. Both sides had presented colorable arguments to the Board. Needless to say, one cannot be on notice of final agency action while the date of that action has not yet been determined. Only when the Board ruled on July 29, 2013, did Continental learn that § 1724(h) had converted Interior’s inaction into a “final decision in favor of the Secretary” on June 17, 2013. The Board’s ruling, and Continental’s “receipt of notice” of that ruling, triggered the running of the 180-day period under § 1724®. It follows that Continental commenced this action within the 180-day period. The company filed its complaint on January 16, 2014, 171 days after the Board’s ruling of July 29, 2013.

The district court decided that the 180-day period ran from June 17, 2013, the date of the Secretary’s deemed-final decision. But as we have pointed out, § 1724® provides that the 180-day period runs not from the date of the final decision, but from the lessee’s “receipt of notice” of the final decision. To explain the discrepancy, the district court stated that “although the plaintiff did not receive notice of final agency action until July 29, 2013, the plaintiff received notice by operation of law that the Secretary had not issued a decision within the 33 month period.” Cont’l Res., 134 F.Supp.3d at 237. “Operation of law”? What “law”? The “law” here is § 1724(h)’s 33-month provision and § 1724(j), pursuant to which the 180-day period runs “from receipt of notice.” If the district court believed that § 1724(h) somehow triggered § 1724(j), it offered no basis for that belief. It instead relied on the “operation of law,” and thereby read § 1724(j)’s “receipt of notice” requirement out of the statute.

We do not decide what level of notice is required in other situations. This case does not involve, for instance, the § 1724(h) conversion deadline passing without dispute or the Secretary issuing a timely decision on the merits. We hold only that because Continental could not have known the date of final agency action until July 29, 2013, receipt of notice could not have occurred before then. Continental’s complaint was therefore timely. The judgment of the district court is reversed and the case is remanded for further proceedings.

So ordered.

      , The Board would find for Continental and hold that the deadline passed on June 17, 2013. That June 15, 2013, was a Saturday may explain this discrepancy. See Fed. R. Civ. P. 6(a). But this discrepancy, like others in the parties' proposed chronologies, does not affect the outcome of this appeal.

      . This proposed deadline created another discrepancy in the record. Interior argued for the August 12 deadline by adding 154 days to the 33-month period, but it later conceded that under its own theory of the case, the extension was for 184 days. See Agency’s Mot. for Recons. 5 n.3, Cont'l Res., Inc. v. Jewell, No. 1:14-cv-00065-RDM (D.D.C. Sept. 25, 2013), ECF No. 21-3.

      .As the Board recognized, the thirty-three months plus extension should have been calculated from the time Interior issued its order requiring Continental to pay up (May 5, 2010), rather than from the time Continental took an appeal from that order (June 10 or 11, 2010). Cont’l Res., Inc., 184 IBLA 59, 62 n.3 (2013). See also 30 U.S.C. § 1702(18); Murphy Exploration, 252 F.3d at 480-82. This error does not affect the outcome of the appeal.

      . The district court treated this as a matter of "subject-matter jurisdiction.” Cont’l Res., 134 F.Supp.3d at 233. United States v. Kwai Fun Wong, — U.S. -, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015), decided five months before the district court decision, makes it doubtful that the 180-day period is jurisdictional, but nothing in our opinion turns on the point.

      . When courts have interpreted "receipt of notice” in other contexts, the discussion has often focused on a question not presented here—namely, who must receive the mailed notice. We have held that in some instances the litigant must personally receive the notice, Bell v. Brown, 557 F.2d 849, 857 (D.C. Cir. 1977), while receipt by the litigant’s attorney sufficed in others, Rao v. Baker, 898 F.2d 191, 198 (D.C. Cir. 1990). See also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 91-93, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Christmas v. Spellings, 404 F.Supp.2d 239, 240-41 (D.D.C. 2005) (collecting cases). We have never held that a party received notice by "operation of law” and we are not aware of any decision to that effect in the other courts of appeals.


author: TATEL, Circuit Judge:

text:
    CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Appellant v. UNITED STATES DEPARTMENT OF JUSTICE, et al. Appellees
    No. 16-5110
    United States Court of Appeals, District of Columbia Circuit.
    Argued December 5, 2016
    Decided January 31, 2017

      Alan B. Morrison argued the cause for appellant. With him on the briefs was Adam J. Rappaport.
    Scott L. Nelson, Washington, DC, and Rachel M. Clattenburg were on the brief for amicus curiae Public Citizen, Inc. in support of appellant.
    Daniel Tenny, Attorney, U.S. Department of Justice, argued the cause for ap-pellees. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Michael S. Raab, Attorney.
    Before: TATEL and WILKINS, Circuit Judges, and SENTELLE, Senior Circuit Judge.
   TATEL, Circuit Judge:

Section 704 of the Administrative Procedure Act limits judicial review under that statute to agency actions “for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Appellant filed suit under the APA to compel the Department of Justice’s Office of Legal Counsel to meet its disclosure obligations under the “reading-room” provision of the Freedom of Information Act. 5 U.S.C. § 552(a)(2). The district court dismissed the case, concluding that appellant has an adequate remedy under FOIA. For the reasons set forth below, we agree and affirm.

I.

“For decades, [the Office of Legal Counsel (OLC) ] has been the most significant centralized source of legal advice within the Executive Branch.” Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1451 (2010). Indeed, executive-branch officials seek OLC’s opinion on some of the weightiest matters in our public life: from the president’s authority to direct the use of military force without congressional approval, to the standards governing military interrogation of “alien unlawful combatants,” to the president’s power to institute a blockade of Cuba. Office of Legal Counsel, Authority to Use Military Force in Libya (Apr. 1, 2011); Office of Legal Counsel, Military Interrogation of Alien Unlawful Combatants Held Outside the United States (Mar. 14, 2003); Office of Legal Counsel, Authority of the President to Blockade Cuba (Jan. 25,1961).

OLC’s authority to render advice is, in some sense, nearly as old as the Republic itself. In the Judiciary Act of 1789, Congress authorized the Attorney General “to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments.” Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 93; see 28 U.S.C. §§ 511-513 (codified as amended). The Attorney General has, in turn, delegated to OLC authority to “[p]repar[e] the formal opinions of the Attorney General; render[ ] informal opinions and legal advice to the various agencies of the Government; and assist[ ] the Attorney General in the performance of his functions as legal adviser to the President.” 28 C.F.R. § 0.25; see Luther A. Huston, The Department of Justice 61 (1967) (recounting the formation of OLC).

OLC has a “longstanding internal process in place for regular consideration” of whether to share “significant opinions” with the public. Memorandum from David J. Barron, Acting Assistant Attorney General, to Attorneys of the Office, Best Practices for OLC Legal Advice and Written Opinions 5 (July 16, 2010). Attorneys who have worked on or reviewed an opinion give initial recommendations about whether publication is appropriate that are “forwarded to an internal publication review committee.” Id. “If the committee makes a preliminary judgment that the opinion should be published, the opinion is circulated to the requesting Executive Branch official or agency and any other agencies that have interests that might be affected by publication, to solicit their views” before the committee renders a “final judgment.” Id. In making this determination, OLC “operates from the presumption that it should make its significant opinions fully and promptly available.” Id. An opinion is deemed significant if, for example, it possesses “potential importance ... to other agencies or officials in the Executive Branch”; there is a “likelihood that similar questions may arise in the future”; it is of “historical importance”; or it has potential significance to OLC’s “overall jurisprudence.” Id. Other factors militate against disclosure, such as when publication would “reveal classified or other sensitive information relating to national security”; “interfere with federal law enforcement efforts”; undermine “internal Executive Branch deliberative processes” or “the confidentiality of information covered by the attorney-client relationship between OLC and other executive offices”; or result in the disclosure of documents “that are of little interest to the public.” Id. at 5-6.

Unsatisfied that these procedures provide the public with the access the Freedom of Information Act demands, appellant Citizens for Responsibility and Ethics in Washington (CREW) initiated this litigation. CREW is a nonprofit corporation whose organizational mission is “to protect[ ] the rights of citizens to be informed about the activities of government officials.” By its own account, CREW is no stranger to using FOIA to obtain and disseminate information “about government officials and their actions,” including OLC. For instance, before commencing this action it filed a separate FOIA request—not at issue here—“for all [OLC] opinions discussing the authority of the president as well as any executive branch agency or agency component to conduct domestic and foreign surveillance.”

Before filing suit, CREW sent a letter to OLC requesting that it comply with its obligations under FOIA section 552(a)(2)— the so-called “reading-room” provision— which requires agencies to “make available for public inspection in an electronic format” certain records, including “final opinions ... made in the adjudication of cases” and “those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register.” Letter to Assistant Attorney General Virginia A. Seitz from Anne L. Weismann (July 3, 2013); 5 U.S.C. § 552(a)(2). CREW argued that OLC opinions are subject to disclosure under the reading-room provision because they “function as binding law on the executive branch.” Letter to Assistant Attorney General Seitz.

In response, OLC explained that, in its view, FOIA exempts OLC opinions from disclosure because they are “ordinarily covered by [FOIA’s] attorney-client and deliberative process privileges” and, “as confidential and predecisional legal advice, ... constitute neither ‘final opinions ... made in the adjudication of cases’ nor ‘statements of policy and interpretations which have been adopted by the agency.’ ” Letter to Anne L. Weismann from Deputy Assistant Attorney General John E. Bies (Aug. 20, 2013). “Nevertheless,” OLC stated, it “make[s] an individualized, case-by-case determination with respect to whether each opinion ... is appropriate for publication” and, in response to FOIA requests seeking specific records, “consider[s] whether to waive applicable privileges and release the opinion as a matter of administrative discretion.” Id.

Shortly after receiving OLC’s response, CREW commenced this action against DOJ and certain DOJ officials. The amended complaint alleges a claim under the APA, 5 U.S.C. § 702, challenging as arbitrary, capricious, and contrary to law OLC’s purported failure to meets its disclosure obligations under FOIA’s reading-room requirements, 5 U.S.C. § 552(a)(2). As its primary form of relief, CREW seeks an injunction directing OLC to disclose all documents subject to that provision. The injunction would have four features: (1) it would apply prospectively, that is, to documents not yet created; (2) it would impose an affirmative obligation to disclose, that is, OLC would disclose documents regardless of whether someone specifically requests a given document; (3) it would mandate that OLC make documents available to the public, as opposed to just CREW; and (4) it would require OLC to make available to the public an index of all such documents.

DOJ moved to dismiss the amended complaint on multiple grounds, and on March 7, 2016, the district court granted that motion. As the court explained, because CREW challenges OLC’s actions under the APA, “it must satisfy the APA’s predicate requirements for bringing suit,” namely, that “there is no other adequate remedy” available. Citizens for Responsibility and Ethics in Washington v. DOJ, 164 F.Supp.3d 145, 151 (D.D.C. 2016); 5 U.S.C. § 704. The district court concluded that FOIA provides an adequate remedy, thus barring CREW’s APA claim.

CREW now appeals. Our review is de novo.

II.

FOIA imposes on federal agencies both reactive and affirmative obligations to make information available to the public. In the former category, the act’s most familiar provision, section 552(a)(3) provides that agencies must “make ... records promptly available” in response to specific requests. 5 U.S.C. § 552(a)(3)(A). In the latter category are two distinct affirmative disclosure obligations. One, section 552(a)(1), requires agencies to “publish in the Federal Register” certain records, such as “substantive rules of general applicability adopted as authorized by law.” Id. §§ 552(a)(1), (a)(1)(d). The other, section 552(a)(2)—the reading-room provision at issue in this case—requires agencies to “make [certain records] available for public inspection in an electronic for-mate,]” including “statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register.” Id. §§ 552(a)(2), (a)(2)(B).

To breathe life into these obligations, FOIA provides for judicial review. Section 552(a)(4)(B) grants district courts jurisdiction to review “de novo” an agency’s decision to withhold records and empowers courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” Id. § 552(a)(4)(B). Our precedent makes clear that FOIA’s “remedial provision ... governs judicial review of all three types of documents”—that is, requests for information under sections 552(a)(1), (2), or (3). Kennecott Utah Copper Corp. v. Department of Interior, 88 F.3d 1191, 1202 (D.C. Cir. 1996). Equally certain under our case law, a plaintiff may bring an action under FOIA to enforce the reading-room provision, and may do so without first making a request for specific records under section 552(a)(3). Irons v. Schuyler, 465 F.2d 608, 614 (D.C. Cir. 1972) (“[T]he opinions and orders referred to in Section 552(a)(2), when properly requested, are required to be made available, and ... such requirement is judicially enforceable without further identification under Section 552(a)(3), even though the agency has failed to make them available as required by Section 552(a)(2)”).

Concerned that FOIA’s remedial provision does not empower a district court to order all the relief necessary to force an agency to meet its reading-room obligations, CREW brought its claim under the APA. As noted above, however, APA section 704 limits review under that statute to agency actions “for which there is no other adequate remedy in a court.” 5 U.S.C. § 704.

The issue in this case—whether CREW can pursue this suit under the APA because FOIA does not provide an “adequate remedy”—is easy to state but difficult to resolve. Indeed, this is a case of first impression, as none of our section 704 cases concerns FOIA, nor do our FOIA cases address section 704. See Kennecott, 88 F.3d at 1203 (declining to address whether the APA authorizes a district court to order publication of a document for an alleged violation of FOIA section 552(a)(1)); Tax Analysts v. IRS, 117 F.3d 607, 610 n.4 (D.C. Cir. 1997) (“Kennecott left open the question whether other sources of law might authorize additional remedial orders in FOIA cases.”).

Befitting this novel question, the parties’ briefs are both excellent and interesting. Both CREW and the Government appear to narrowly construe FOIA’s remedial provision as empowering a district court faced with a violation of the reading-room requirement to order only the disclosure to. a plaintiff of extant documents in response to a specific request. But they have significantly different views of the consequences. According to CREW, this gap between the relief it seeks and the relief available under FOIA means that a claim under FOIA cannot qualify as an “adequate remedy” barring its APA claim. According to DOJ, however, because an alternative remedy need not be “identical” in order' to be “adequate,” CREW’s APA claim fails even under a constricted view of the relief FOIA affords. In a helpful amicus brief, Public Citizen argues that both are wrong. It urges us to read FOIA’s remedial provision broadly, as encompassing all the relief sought by CREW.

To resolve this issue, we begin by considering whether CREW may obtain the relief it wants under FOIA. For if it can, as Public Citizen thinks, then we need not explore what “adequate” means under the APA. But if, as CREW believes, FOIA does not provide the relief it seeks, then we must consider whether, as the Government insists, FOIA nonetheless offers an adequate remedy.

III.

CREW seeks an injunction with four features it believes are necessary to guarantee OLC meets its reading-room obligations. First, the injunction would have prospective effect—ie., it would apply to opinions not yet written. Second, it would impose an affirmative obligation to disclose on OLC—ie., without need for a specific prior request. Third, it would mandate disclosure to the public, as opposed to just CREW. Fourth, it would require OLC to make available to the public an index detailing all documents subject to the reading-room provision.

We start with the proposition that FOIA section 552(a)(4)(B) vests courts with broad equitable authority. True, as the Supreme Court explained in Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), that provision “explicitly confers jurisdiction to grant injunctive relief of a described type, namely, ‘to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.’ ” Id. at 18, 94 S.Ct. 1028 (citing 5 U.S.C. § 552(a)(4)(B)). But as the Court made clear in the same decision, Congress did not intend that language “to limit the inherent powers of an equity court” in FOIA cases. Id. at 20, 94 S.Ct. 1028; see Payne Enterprises v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (“FOIA imposes no limits on courts’ equitable powers in enforcing its terms.” (citing Renego-tiaton Board, 415 U.S. at 19-20, 94 S.Ct. 1028)). “Once invoked, the scope of a district court’s equitable powers ... is broad, for breadth and flexibility are inherent in equitable remedies.” Brown v. Plata, 563 U.S. 493, 538, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011) (citations and internal quotation marks omitted). This is especially so where, as here, “federal law is at issue and ‘the public interest is involved,’ [as] a federal court’s ‘equitable powers assume an even broader and more flexible character than when only a private controversy is at stake.’” Kansas v. Nebraska, — U.S. -, 135 S.Ct. 1042, 1053, 191 L.Ed.2d 1 (2015) (quoting Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946)).

This circuit’s case law reflects the wide latitude courts possess to fashion remedies under FOIA, including the power to issue prospective injunctive relief. In Payne, we confronted the Air Force’s repeated failure to disclose documents in response to a company’s FOIA requests. 837 F.2d at 487. Frustrated by the need to pursue successive and “invariably successful” challenges every time it sought such documents, the company filed suit seeking an “injunction] ... to compel [the Air Force] to release” the documents. Id. at 487. We held that the company “ha[d] an undeniable right” to the sought-after “information ... and [was] entitled to a judgment in support of its claim.” Id. at 494. Accordingly, we instructed the district court to on remand “consider the propriety of injunctive relief.” Id. at 495. “In particular,” we directed the court to “evaluate the likelihood that the Air Force will return to its illicit practice of delay in the absence of an injunction.” Id.

Our later decisions confirm that a plaintiff may challenge an agency’s “policy or practice” where it “will impair the party’s lawful access to information in the future.” Newport Aeronautical Sales v. Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012) (quoting Payne, 837 F.2d at 491) (emphasis added). In other contexts, we have recognized courts’ power to order relief beyond the simple release of extant records. See Morley v. CIA, 508 F.3d 1108, 1120 (D.C. Cir. 2007) (acknowledging a district court’s power to direct an agency to conduct additional searches for records in response to a FOIA request).

Following Renegotiation Board, Payne, and these other decisions, we have little trouble concluding that a district court possesses authority to grant the first two categories of relief CREW seeks—a prospective injunction with an affirmative duty to disclose. The third and fourth categories of relief present a trickier problem.

Although broad, courts’ remedial authority under section 552(a)(4)(B) is not boundless. For instance, in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Supreme Court held that “federal courts have no authority to order the production” of records no longer in an agency’s possession “even if a document requested under the FOIA is wrongfully” in the hands of a third party. Id. at 139, 100 S.Ct. 960.

In Kennecott, we announced another limitation on FOIA remedial power of particular relevance to this case. There, the plaintiff filed an action under FOIA seeking. an injunction requiring publication in the Federal Register, pursuant to section 552(a)(1), of regulations that had been withdrawn by the Interior Department. Kennecott, 88 F.3d at 1201. Rejecting this request, we held that section 552(a)(4)(B) “does not authorize district courts to order publication” of documents subject to the provisions of section 552(a)(1). Id. at 1202. Although acknowledging that “it might seem strange for Congress to command agencies to ‘currently publish’ or ‘promptly publish’ documents, without in the same statute providing courts with power to order publication,” we nonetheless concluded “that is exactly what Congress intended.” Id. at 1202-03. Section 552(a)(4)(B), we said, “is aimed at relieving the injury suffered by the individual complainant, not by the general public” as “[i]t allows district courts to order ‘the production of any agency records improperly withheld from the complainant,’ not agency records withheld from the public.” Id. at 1203 (citing 5 U.S.C. § 552(a)(4)(B)) (emphasis in original). Distinguishing between “[providing documents to the individual” and “ordering publication[,]” we held that, under section 552(a)(4)(B), a district court is without authority to do the latter. Id.

Given Kennecott’s construction of section 552(a)(4)(B), we think it clear that a court has no authority under FOIA to issue an injunction mandating that an agency “make available for public inspection” documents subject to the reading-room provision—the third category of relief CREW seeks. 5 U.S.C. § 552(a)(2). Authorizing a court to order an agency to make documents “available for public inspection” would reach beyond section 552(a)(4)(B)’s focus on “relieving the injury suffered by the individual complainant” to remedy an injury suffered by “the general public”—a result our precedent forecloses. Id. at 1203. That said, nothing in Kenne-cott prevents a district court from, consistent with section 552(a)(4)(B), ordering an agency to provide to the plaintiff documents covered by the reading-room provision.

The same analysis governs the fourth type of relief CREW seeks: an order mandating that OLC “maintain and make available for public inspection in an electronic format current indexes providing identifying information as to any matter ... required by [section 552(a)(2)] to be made available or published.” 5 U.S.C. § 552(a)(2) (emphasis added). For just as a district court lacks authority to order an agency to “make available for public inspection” documents subject to the reading-room provision, it is without authority to mandate than an agency make such an index available to the public. 5 U.S.C. § 552(a)(2). We see no obstacle, however, to a district court, in the appropriate case, and as an extension of its broad equitable power to fashion FOIA relief, ordering an agency to furnish such an index to a plaintiff. Indeed, given that Kissinger described section 552(a)(2)’s indexing requirement as one of FOIA’s “very limited record-creating obligations,” Kissinger, 445 U.S. at 152 n.7, 100 S.Ct. 960 (emphasis added), directing an agency to turn over such an index falls comfortably within the textual bounds of section 552(a)(4)(B)’s grant of authority to “enjoin the agency from withholding agency records and to order the production of agency records improperly withheld from the complainant.” 5 U.S.C. 552(a)(2) (emphasis added); see American Immigration Lawyers Association v. Executive Office for Immigration Review, 830 F.3d 667, 678 (D.C. Cir. 2016) (noting that FOIA itself “provides no definition of the terra ‘record.’ ”).

Public Citizen resists these conclusions and urges us to read Kennecott narrowly, as leaving a court’s authority to fashion a remedy for a violation of section 552(a)(2) unconstrained. It points out that Kennecott considered a violation of section 552(a)(1), not section 552(a)(2)’s reading-room requirement. But essential to Kennecott’s holding is its interpretation of the scope of section 552(a)(4)(B), FOIA’s remedial provision, at issue here. Public Citizen also argues that Kennecott “focused on the second clause of [section] 552(a)(4)(B), allowing ‘district courts to order the production of any agency records improperly withheld from the complainant,’ and did not examine the scope of the court’s authority under the first clause, which gives courts the power ‘to enjoin the agency from withholding any records,’ without any limitations.” Amicus Br. 19. The Kennecott court, however, did not so cabin its holding; rather it construed the scope of section 552(a)(4)(B) as a whole. See e.g., 88 F.3d at 1203 (“We think it significant ... that [section] 552(a)(4)(B) is aimed at relieving the injury suffered by the individual complainant, not by the general public.”). Moreover, in arriving at its holding, the Kennecott court necessarily—albeit implicitly—rejected this argument, and we are bound “not only [by] the result” of a prior opinion “but also [by] those portions of the opinion necessary to that result.” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). And given that the parties in Kennecott raised the very textual argument advanced by Public Citizen, we are hardly free to avoid the otherwise binding nature of our precedent on the grounds that the question was one that “merely lurkfed] in the record, neither brought to the attention of the court nor ruled upon,” LaShawn A. v. Barry, 87 F.3d 1389, 1395 n.7 (D.C. Cir. 1996) (en banc); see Joint Reply Br. Ken-necott Utah Copper Corp. and Industry and Sanitation District Petitioners at 13, Kennecott, 88 F.3d 1191 (No. 93-1700).

To sum up, then, CREW may, in a FOIA suit to enforce section 552(a)(2), seek an injunction that would (1) apply prospectively, and would (2) impose an affirmative obligation to disclose upon OLC, but that would (3) require disclosure of documents and indices only to CREW, not disclosure to the public. Having concluded that FOIA makes available all the relief sought by CREW except disclosure to the public, we now consider whether FOIA constitutes an “adequate remedy” preclu-sive of CREW’s APA claim despite this gap between the relief sought and the relief FOIA affords. 5 U.S.C. § 704.

IV.

Section 704 reflects Congress’ judgment that “the general grant of review in the APA” ought not “duplicate existing procedures for review of agency action” or “provide additional judicial remedies in situations where Congress has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (citation omitted). Courts must, however, avoid lightly “construing] [section 704] to defeat the [APA’s] central purpose of providing a broad spectrum of judicial review of agency action.” Id.

When considering whether an alternative remedy is “adequate” and therefore preclusive of APA review, we look for “clear and convincing evidence” of “legislative intent” to create a special, alternative remedy and thereby bar APA review. Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009) (quoting El Rio Santa Cruz Neighborhood Health Center v. HHS, 396 F.3d 1265, 1270 (D.C. Cir. 2005)). Our cases have identified that intent—or its absence—through several means. For example, where Congress has provided “an independent cause of action or an alternative review procedure” in a purported alternative, we have found clear markers of legislative intent to preclude. El Rio, 396 F.3d at 1270. An alternative that provides for de novo district-court review of the challenged agency action offers further evidence of Congress’ will, given the frequent “incompatibility]” between de novo review and the APA’s deferential standards. Environmental Defense Fund v. Reilly, 909 F.2d 1497, 1506 (D.C. Cir. 1990); El Rio, 396 F.3d at 1270 (“[W]here a statute affords an opportunity for de novo district-court review, the court has held that APA review was precluded because ‘Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the review provision] and the APA.” (quoting Environmental Defense Fund, 909 F.2d at 1501 (alteration in original))). That said, if the very existence of an alternative remedy is “doubtful,” Bowen, 487 U.S. at 905, 108 S.Ct. 2722, or “uncertain[ ],” El Rio, 396 F.3d at 1274, there is scant basis to displace APA review.

Because section 704 requires only an adequate alternative, “this court has held that the alternative remedy need not provide relief identical to relief under the APA” in order to have preclusive effect. Garcia, 563 F.3d at 522 (emphasis added); see El Rio, 396 F.3d at 1272 (explaining that an alternative remedy need offer only relief of “the same genre” to “preclude APA review.” (citation omitted)). Still, in determining whether alternative remedies suffice to preclude APA review, courts have “independently examined the[ir] adequacy.” Women’s Equity Action League v. Cavazos, 906 F.2d 742, 751 (D.C. Cir. 1990). In Bowen, for instance, the Court rejected as inadequate and non-preclusive the alternative remedy of bringing a claim for “monetary relief ... in the Claims Court under the Tucker Act.” 487 U.S. at 904, 108 S.Ct. 2722. “The Claims Court,” the Supreme Court observed, “does not have the general equitable powers of a district court to grant prospective relief’ and the Court was “not willing to assume, categorically, that a naked money judgment against the United States will always be an adequate substitute for prospective relief.” Id. at 905, 108 S.Ct. 2722. In Garcia, conversely, we affirmed the dismissal of an APA claim in part because the alternative remedy offered “declaratory and in-junctive relief against the agency, in addition to money damages”—relief we deemed “[i]f anything” superior to that available under the APA. 563 F.3d at 525.

By these lights, we have little doubt that FOIA offers an “adequate remedy” within the meaning of section 704, as it exhibits all of the indicators we have found to signify Congressional intent. FOIA contains an express private right of action and provides that review in such cases shall be “de novo.” 5 U.S.C. § 552(a)(4)(B). As opposed to the “uncertain” and “doubtful” remedies we have rejected as insufficient to preclude APA review, our precedent establishes that a plaintiff in CREW’s position may bring a FOIA claim to enforce the reading-room provision. Irons, 465 F.2d at 614. Indeed, in FOIA Congress established “a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment.” Kissinger, 445 U.S. at 150, 100 S.Ct. 960. The creation of both agency obligations and a mechanism for judicial enforcement in the same legislation suggests that FOIA itself strikes the balance between statutory duties and judicial enforcement that Congress desired. Considered together, FOIA offers CREW precisely the kind of “special and adequate review procedure[ ]” that Congress immunized from “duplic[ative]” APA review. Bowen, 487 U.S. at 903, 108 S.Ct. 2722.

Moreover, as our earlier discussion of the relief available under section 552(a)(4)(B) makes plain, we see no yawning gap between the relief FOIA affords and the relief CREW seeks under the APA. Put another" way, this case differs dramatically from Bowen, in which the Court rejected an alternative remedy that offered only monetary relief as an inadequate substitute for the “general equitable powers of a district court.” 487 U.S. at 905, 108 S.Ct. 2722. True, courts lack authority under FOIA to order agencies to “make [records] available for public inspection.” 5 U.S.C. § 552(a)(2). Significantly for our purposes, however, CREW itself can gain access to all the records it seeks.

Thus, despite some mismatch between the relief sought and the relief available, FOIA offers an “adequate remedy” within the meaning of section 704 such that CREW’S APA claim is barred. 5 U.S.C § 704.

Y.

Three parting thoughts.

First, given the many indicia of Congressional intent that counsel in favor of our conclusion today, no one should understand our decision as “assuming], categorically,”—i.e., outside the FOIA context— that an alternative remedy will preclude APA relief even if that alternative circumscribes courts’ authority to order appropriate injunctive relief. See Bowen, 487 U.S. at 905, 108 S.Ct. 2722.

Second, our determination that FOIA is the proper vehicle for CREW’s claim is entirely distinct from the question whether CREW is entitled to relief. That merits question—whether the reading-room provision commands disclosure of any OLC opinions—awaits a different day and a different case.

Finally, even if CREW prevails on the merits, our conclusion that certain relief is available under FOIA says nothing about its propriety in an individual case. Indeed, we expect that only a rare instance of agency delinquency in meeting its duties under the reading-room provision will warrant a prospective injunction with an affirmative duty to disclose subject records to a plaintiff. See Payne, 837 F.2d at 494-95.

For the foregoing reasons, we affirm the district court’s dismissal of the case.

So ordered.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles SCHRADER, Defendant-Appellant.
    No. 15-3855
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 21, 2016
    Filed: February 2, 2017
    Counsel who represented the appellant was Monica D. Colbath of Rapid City, SD.
    Counsel who represented the appellee was Eric D. Kelderman, AUSA, of Rapid City, SD.
    Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
   PER CURIAM.

Charles D. Schrader violated the conditions of his supervised release. He appeals only the district court’s refusal to redact the Supplemental Presentence Investigation Report (PSR). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

The government sought to revoke Schrader’s supervised release for two reasons: (1) cocaine possession and (2) sexual assault. It later added (3) alcohol consumption. Before the hearing, the government announced it did not have and would not present evidence about allegations (1) and (2). Schrader presented evidence that the victim fabricated allegations (1) and (2). The district court granted Schrader’s motion to seal both petitions, but refused to strike allegations (1) and (2). The court stated that Schrader did not have a right to amend the petitions because they were not his pleadings and were based on information at the time of filing. The court granted the government’s motion to dismiss allegations (1) and (2).

The district court sustained two factual objections to the PSR paragraphs covering allegations (1) and (2). It, however, refused to redact or amend the paragraphs. The court emphasized that the hearing transcript and PSR would show that the objections were sustained, and that the judgment would show that allegations (1) and (2) were dismissed.

Schrader contends that the refusal to redact information about the alleged sexual assault was an abuse of discretion. See United States v. McLemore, 5 F.3d 331, 332 (8th Cir. 1993) (reviewing district court action on PSR challenges for compliance with Rule 32). See also United States v. Asante, 782 F.3d 639, 649 (11th Cir. 2011) (reviewing for abuse of discretion); United States v. LeBlanc, 762 F.2d 602, 605 (6th Cir. 1986) (same).

Federal Rule of Criminal Procedure 32 “does not require a court to strike controverted material not considered in sentencing.... The district court need only satisfy Rule 32.” United States v. Smith, 40 F.3d 933, 936 (8th Cir. 1994). See also United States v. Orchard, 332 F.3d 1133, 1137 n.2 (8th Cir. 2003). Rule 32(d)(3) excludes from a PSR, as relevant here, two types of information: “(A) any diagnoses that, if disclosed, might seriously disrupt a rehabilitation program; ... and (C) any other information that, if disclosed, might result in physical or other harm to the defendant or others.”

Schrader contends that the sexual-assault allegations will disrupt his rehabilitative program because a sexual offense will prevent his acceptance to many treatment centers. Schrader’s argument never mentions “diagnoses,” as required by Rule 32(d)(3)(A). Schrader offers only speculation that treatment centers will reject him due to unproven material. PSRs are generally confidential. See United States v. Williams, 624 F.3d 889, 894 (8th Cir. 2010). Only with a court order may a PSR be seen by anyone except the court, counsel, or defendant. See D.S.D. Crim. LR 32.1(B). Most important, the district court ensured that the judgment shows that the sexual-assault allegations were dismissed.

Schrader argues for the first time on appeal the potential of physical harm from the sexual-assault allegations. He offers no reasoning or supporting facts. Even if Schrader preserved this argument, alleging possible physical harm, without more, is too speculative to justify exclusion under Rule 32(d)(3)(C). See United States v. Bartlett, 416 Fed.Appx. 508, 510 (6th Cir. 2011) (finding no violation of Rule 32 where the district court refused to strike sexual-abuse allegations and instead indicated it did not resolve their truth).

The district court followed Rule 32 in ruling on the disputed PSR paragraphs. Compliance with Rule 32 sufficiently alleviates any concern that others will rely on the unproven allegations. See United States v. Hopkins, 824 F.3d 726, 735 (8th Cir. 2016) (holding concerns that prison officials will rely on unfounded, detrimental PSR information are “met by a district court’s compliance with Rule [32(i)(3)(B) ]”). Because Rule 32 does not compel exclusion of the PSR paragraphs, the district court correctly refused to redact them.

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The judgment is affirmed.

      . The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota.


author: BENTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Donovan JOHNSON, Defendant-Appellant
    No. 16-1977
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 9, 2017
    Filed: February 6, 2017

      Counsel who represented the appellant was Kenneth Rader Schwartz of Clayton, MO.
    Counsel who represented the appellee was Thomas Joseph Mehan, AUSA, of Saint Louis, MO., Tiffany Gulley Becker, AUSA, of Saint Louis, MO.
    Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

Donovan K. Johnson pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals the district court’s application of a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm in connection with another felony. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Surveying a house for drug activity, officers saw Johnson exit with a firearm protruding from his waistband. He entered a vehicle; officers followed, eventually stopping it for a traffic violation. Approaching, they saw Johnson repeatedly reaching under his seat. During a search, they found 72 heroin capsules on Johnson and a firearm in the vehicle.

The district court assessed a four-level enhancement for possessing a firearm in connection with another felony. See U.S.S.G. § 2K2.1(b)(6)(B). It sentenced Johnson to 72 months’ imprisonment. He argues the court erroneously found: (1) the heroin was a distribution, not a “user,” amount; and (2) he used the gun “in connection with” another felony. This court reviews factual findings for clear error, and application of the sentencing guidelines de novo. United States v. Blankenship, 552 F.3d 703, 704 (8th Cir. 2009).

United States Sentencing Guideline § 2K2.1(b)(6)(B) increases a defendant’s base offense level if the defendant “[u]sed or possessed any firearm or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). Applying the enhancement, there is “a distinction between the factual circumstances of when the other felony was a drug trafficking offense, or alternatively, a simple drug possession offense.” Blankenship, 552 F.3d at 705. “If the felony is for drug trafficking, Application Note 14(B) mandates application of the adjustment if guns and drugs are in the same location.” Id. citing U.S.S.G. § 2K2.1(b)(6) cmt. n. 14(B).

“If the underlying drug offense is for simple possession, the district court may still apply the adjustment, but only after making a finding that the firearm facilitated the drug offense.” Id., citing United States v. Fuentes Torres, 529 F.3d 825, 827-28 n. 2 (8th Cir. 2008). See United States v. Holm, 745 F.3d 938, 940 (8th Cir. 2014) (“For purposes of the § 2K2.1(b)(6)(B) enhancement, a firearm is possessed ‘in connection with’ a drug possession felony if it ‘facilitated, or had the potential of facilitating that other felony.”), quoting U.S.S.G. § 2K2.1, cmt. n. 14(A). This court reverses if “the record on appeal indicated] that the district court applied the section 2K2.1 (b)(6) enhancement based on a temporal and spatial nexus between the drugs and firearms, without applying the ‘facilitate’ standard of note 14(A).” United States v. Sneed, 742 F.3d 341, 344 (8th Cir. 2014) (internal quotations omitted), quoting United States v. Dalton, 557 F.3d 586, 589 (8th Cir. 2009). “[Wjhen a drug user chooses to carry illegal drugs out into public with a firearm, an ‘in connection with’ finding ‘will rarely be clearly erroneous.’” Holm, 745 F.3d at 940, quoting Sneed, 742 F.3d at 344.

Considering all the evidence, the district court found:

Now the gun can’t be just in—it’s not just proximity. However, I believe that in this case the evidence shows given where the gun was, being seen on his person, later being under the seat of the car in close proximity to him as he is in the car, that this gun had the potential to facilitate the distribution of the drugs.... I believe that having the drugs and the gun together and this quantity of drugs in a car going somewhere is a sufficient basis for me to find that this gun either facilitated or had— but certainly it had the potential to facilitate the possession with intent to distribute.

(emphasis added). The court did not apply the enhancement based solely “on a temporal and spatial nexus between the drugs and firearms.” Sneed, 742 F.3d at 344. See United States v. Jarvis, 814 F.3d 936, 936-38 (8th Cir. 2016) (holding that the district court did not err in finding a firearm was used “in connection with” heroin possession where the defendant left the house with a bag of 0.21 grams of heroin and a firearm in his pocket); United States v. Swanson, 610 F.3d 1005, 1008 (8th Cir. 2010) (“The inference that a firearm is for protection of drugs is allowable when the amount of drugs is more than residue.”).

The district court did not clearly err in finding that the gun facilitated possession with intent to distribute, and, therefore, Johnson possessed the firearm “in connection with” the heroin possession. This finding was sufficient to apply the 4-level enhancement.

sfc ⅜ ⅜ ⅝ ¾; ⅜! ⅝

The judgment is affirmed.

      . The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.

      . Because the district court properly found the firearm facilitated the drug possession, this court need not consider Johnson’s argument that the court erred in determining he possessed more than a user amount of heroin.