Key Points

  • FOIA's remedial provision, 5 U.S.C. § 552(a)(4)(B), contains two independent clauses, and the clause authorizing courts to enjoin an agency from withholding records permits prospective relief against ongoing violations.
  • The phrase "from the complainant" limits only the order-production clause, so courts may order agencies to post qualifying records in their online reading rooms for the public.
  • The Fifth Circuit expressly parted ways with the D.C. Circuit's 2017 CREW decision and aligned with the Second and Ninth Circuits.
  • The panel held that FEMA was not entitled to summary judgment on whether it has a practice of violating the reading-room provision, finding each Judicial Watch recurrence factor favored LUPE.
  • The case returns to the Southern District of Texas to decide whether the disaster-aid documents must be posted and, if so, the scope of relief, with a caution against perpetual follow-the-law injunctions.

The U.S. Court of Appeals for the Fifth Circuit held on Oct. 22 that federal judges may order agencies to post records online for the general public under the Freedom of Information Act, splitting with the D.C. Circuit and reviving a Texas group's lawsuit accusing the Federal Emergency Management Agency of deciding disaster-aid claims under unpublished rules.

Judge Stephen A. Higginson wrote for a panel that also included Judges Southwick and Douglas. The panel issued no separate opinions. It reversed the district court's grant, in part, of summary judgment to FEMA and that court's dismissal of La Unión del Pueblo Entero's suit with prejudice. The court did not order FEMA to publish anything and sent the case back for further fact-finding.

The decision turns on FOIA's remedial provision, which gives district courts "jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." The D.C. Circuit read the closing words "from the complainant" in a 2017 decision to confine relief to the party that sued. The Fifth Circuit joined the Second and Ninth Circuits in holding that the phrase limits only the second clause, so a court may order an agency to make records available to everyone.

The records at issue fall under FOIA's reading-room provision, which requires agencies to "make available for public inspection in an electronic format" certain documents. Those include "statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register" and "administrative staff manuals and instructions to staff that affect a member of the public."

"Three grammatical features of Section 552(a)(4)(B) make obvious that two distinct clauses, each conferring a distinct remedial power, make up the provision," Higginson wrote. The word "withholding" in the first clause, a present participle, denotes ongoing conduct. The panel held that this clause permits prospective relief, while the past-tense "withheld" in the second clause reaches only documents an agency already holds.

The panel then held that "from the complainant" attaches only to the second clause. Under the series-qualifier canon, a modifier at the end of a list normally applies to the whole list. Higginson found the canon inapplicable because the two clauses have separate objects, "to" repeats before the second verb, and the phrase lacks a preceding comma. "In a reading-room case, the violation at issue is inherently one about public access," he wrote. Relief in such a case "requires something broader, since the violation is inherently about the agency's failure to make requisite materials available online."

The opinion acknowledged the conflict directly. "We recognize that, in adopting this interpretation of Section 552(a)(4)(B), we part ways with the D.C. Circuit, which has found that relief in reading-room cases does not extend beyond the individual complainant," Higginson wrote. He said the D.C. Circuit's 2017 ruling "rested in large part on that court's precedent," adding, "we are not so constrained."

FEMA had cited two Supreme Court decisions, from 1980 and 1989, for the position that an agency's withholding of documents is a prerequisite for jurisdiction. The panel held that those cases decided narrower questions and "do not stretch so far."

La Unión del Pueblo Entero, known as LUPE, is a nonprofit that serves low-income Texans, largely in South Texas. The group sued FEMA in 2008 over an unpublished rule for hurricane home-damage claims, and after ten years of litigation a district court vacated the rule. Between August 2020 and March 2021, LUPE filed sixteen FOIA requests for the standards FEMA used after sixteen disasters and received no documents.

The standards govern the Individuals and Households Program, which pays disaster survivors for uninsured losses of up to $43,600 adjusted for inflation. FEMA provided $32 billion through the program between October 2020 and January 2024. After LUPE sued in the Southern District of Texas in July 2021, FEMA produced 4,350 pages, many redacted, and after a court-ordered second search produced 6,000 more pages, including eligibility policies and guidelines, posting them with unredacted copies to its reading room.

In September 2024, the district court found that LUPE had shown only discrete violations, not a practice warranting an injunction. That court credited a FEMA employee's declaration stating that future documents "will be evaluated based on the applicable law." The Fifth Circuit held that the statement "does not carry the weight the district court afforded to it."

Applying a test drawn from a 2018 D.C. Circuit decision, Judicial Watch v. Department of Homeland Security, the panel found that each factor favored LUPE. Those factors ask whether there is a "cognizable danger of recurrent violations," weighing the agency's stated intent to comply, the character of its past violations and, critically, the public effect of disclosure. The panel cited an inspection guideline that limited payouts for storm-damaged basement rooms. "That information governs claims' success, and yet a potential claimant cannot access it," Higginson wrote.

The panel also cautioned district courts. Judges should avoid "issuing a perpetual follow-the-law injunction," the opinion said, and must find a probability that the alleged illegal conduct will recur before granting prospective relief. Quoting the Second Circuit, the panel said courts should "craft remedies that take into account the potentially significant burden on the agency of complying with any such order, and work with the parties to establish realistic timelines for compliance."

On remand, the district court must decide whether the specific program documents are the kind FEMA must post under the reading-room provision and, if so, what relief is appropriate. The parties had agreed to defer mediation over FEMA's documents dated after Jan. 19, 2022, until the district court ruled on the reach of FOIA's remedial provision. "With the benefit of clearer case law, we hope the district court will be empowered to sort out the facts of this long-running dispute," Higginson wrote.