18-2819
Whitaker v. Department of Commerce



                                   In the
               United States Court of Appeals
                        For the Second Circuit
                                  ________

                             AUGUST TERM, 2019

                         ARGUED: SEPTEMBER 3, 2019
                         DECIDED: AUGUST 14, 2020

                                 No. 18-2819

     STEPHEN WHITAKER, DAVID GRAM, AND ALL SIMILARLY SITUATED
                              PARTIES,
                        Plaintiffs-Appellants,

                                      v.

                         DEPARTMENT OF COMMERCE,
                             Defendant-Appellee.
                                  ________

                 Appeal from the United States District Court
                         for the District of Vermont.
                                  ________

Before: WALKER, LOHIER, AND CARNEY, Circuit Judges.
                           ________

          This case arises from plaintiffs’ Freedom of Information Act 1
(FOIA) requests for records from the Department of Commerce


1   5 U.S.C. § 552.
2                                                           No. 18-2819

(DOC);    the   National    Telecommunications      and     Information
Administration (NTIA), an agency within the DOC; and the First
Responder Network Authority (FirstNet), an independent entity
within the NTIA. Plaintiffs appeal from a decision of the United States
District Court for the District of Vermont (Crawford, J.) dismissing
their claims in part and granting summary judgment for defendant in
part. We hold that the district court did not err in concluding that (i)
FirstNet is not subject to FOIA and that (ii) an agency need not search
for records if it has reasonably determined that a search would be
futile. We therefore AFFIRM.
                               ________

                   KELLY     MCCLANAHAN,         National      Security
                   Counselors, Rockville,       MD, for       Plaintiffs-
                   Appellants.

                   LAURA E. MYRON, Attorney, Appellate Staff, Civil
                   Division, U.S. Department of Justice (Joseph H.
                   Hunt, Mark B. Stern, on the brief), for Christina E.
                   Nolan, United States Attorney, Washington, D.C.,
                   for Defendant-Appellee.

                   Daniel W. Wolff, Amanda Shafer Berman, Crowell
                   & Moring LLP, Washington, D.C., for amicus curiae
                   AT&T Corporation.

                               ________

JOHN M. WALKER, JR., Circuit Judge:


      This case arises from plaintiffs’ Freedom of Information Act
(FOIA) requests for records from the Department of Commerce
(DOC);    the   National    Telecommunications      and     Information
Administration (NTIA), an agency within the DOC; and the First
Responder Network Authority (FirstNet), an independent entity
3                                                                 No. 18-2819

within the NTIA. Plaintiffs appeal from a decision of the United States
District Court for the District of Vermont (Crawford, J.) dismissing
their claims in part and granting summary judgment for defendant in
part. We hold that the district court did not err in concluding that (i)
FirstNet is not subject to FOIA and that (ii) an agency need not search
for records if it has reasonably determined that a search would be
futile. We therefore AFFIRM.



                             BACKGROUND 2
       Plaintiffs’ FOIA requests concerned the operations of FirstNet.
FirstNet was created by Congress in 2012 at the recommendation of
the 9/11 Commission to oversee the development of a National Public
Safety Broadband Network (NPSBN) for first responders. On March
30, 2017, following FirstNet’s request for proposals to build and
operate the NPSBN, the bid was awarded to AT&T. AT&T and
FirstNet then built an online system called the State Plans Portal (the
“Portal”) to fulfill FirstNet’s statutory obligation to inform state
governments about AT&T’s winning proposal so that each state could
make an informed decision about whether to opt into the national
network or receive federal funding to create its own alternative
network. 3 On June 19, 2017, FirstNet released plans for the NPSBN
through the Portal. State governments had 45 days to review the plans
and provide any feedback. On September 29, 2017, a 90-day period
began during which states were required either to opt in or out of the
national network. That period ended on December 28, 2017.
       Between September 1 and October 5, 2017, plaintiffs submitted
six FOIA requests. The first three requests, submitted to FirstNet, the

2 This statement of background facts is drawn from the record and is uncontested
by the parties.
3 See 47 U.S.C. § 1442(e).
4                                                                 No. 18-2819

NTIA, and the DOC on September 1, sought user comments
submitted to the Portal, communications           that      the      agencies
considered to be agreements from states to opt into the national
network, and any contracts, agreements, and memoranda of
understanding with AT&T. The fourth and fifth requests, submitted
to FirstNet, the NTIA, and the DOC on September 25, sought copies
of the plans provided to the states and related correspondence and
records about the Portal’s terms of use. The sixth request, submitted
to FirstNet and the NTIA on October 5, sought correspondence from
the states affirmatively opting out of the national network.
       FirstNet responded to each request with a letter stating that,
pursuant to a provision of its enabling statute, 47 U.S.C. § 1426(d)(2),
it was exempt from FOIA and therefore had not conducted a search
for responsive documents. In response to the September 25 requests,
the NTIA produced five unredacted documents concerning the
Portal’s terms of use. The NTIA responded to all other requests with
letters stating that any responsive records would be FirstNet records,
not NTIA records, and therefore that it would transfer the requests to
FirstNet for possible discretionary disclosure. The DOC responded to
each request with a letter stating the same. 4
       On October 6, 2017, plaintiffs commenced the present litigation,
alleging eighteen causes of action. Plaintiffs alleged that FirstNet
(Counts 1–5), the NTIA (Counts 6–10), and the DOC (Counts 11–15)
improperly failed to search for and to produce records in violation of
FOIA. Count 16 alleges that, contrary to FirstNet’s interpretation, 47

4 On September 1, 2017, plaintiffs submitted an additional FOIA request to the
DOC seeking all privacy impact assessments for FirstNet-affiliated systems. The
DOC initially responded the same way it had responded to plaintiffs’ other
requests, but it subsequently directed plaintiffs’ counsel to a privacy impact
assessment for the “NTIA-035 FirstNet General Support System,” which was
available on the DOC’s public website. That FOIA request and the DOC’s response
are not a subject of this litigation.
5                                                                  No. 18-2819

U.S.C. § 1426(d)(2) does not exempt FirstNet from FOIA and seeks
declaratory and injunctive relief. Count 17 alleges that the NTIA and
the DOC have a policy or practice, in violation of FOIA, of referring
to FirstNet all FOIA requests related to FirstNet. Count 18 alleges that
the DOC failed to conduct an appropriate privacy impact assessment,
as required by § 208 of the E-Government Act of 2002, 5 regarding
personal information gathered by FirstNet for the Portal and for the
NPSBN. Count 18 seeks an injunction barring FirstNet from collecting
personal information until a proper assessment is conducted.
       The district court dismissed Counts 1–5 and 16 on the basis that
a provision of FirstNet’s enabling statute, 47 U.S.C. § 1426(d)(2),
exempts FirstNet from FOIA. The district court also granted
defendant’s motion for summary judgment on Counts 6–15 and 17
because plaintiffs did not introduce evidence that created a genuine
dispute of material fact as to whether the NTIA and the DOC
complied with FOIA (Counts 6–15) or whether those agencies had a
policy or practice of referring FOIA requests to FirstNet (Count 17).
On Count 18, the district court dismissed plaintiffs’ claims as unripe
to the extent that they concerned the NPSBN because that system did
not yet exist, and it granted summary judgment for defendant to the
extent that the claim concerned the Portal. 6 This appeal followed.

                               DISCUSSION
       On appeal, plaintiffs argue that the district court erred by
concluding that (i) FirstNet is not subject to FOIA; (ii) the DOC and
NTIA’s decisions not to search for responsive records and to refer
plaintiffs’ requests to FirstNet were lawful; and (iii) plaintiffs lack

544 U.S.C. § 3501 note.
6 Plaintiffs state that they “no longer have any interest in the Portal”; their
argument on appeal concerns only defendant’s alleged “failure to issue a [privacy
impact assessment] for the NPSBN and any related systems.” Plaintiffs-Appellants
Br. at 35.
6                                                                         No. 18-2819

standing to challenge defendant’s compliance with § 208 of the
E-Government Act of 2002 and that Count 18 was not ripe to the
extent that it concerned the NPSBN.
        We review the grant of both a motion to dismiss 7 and a motion
for summary judgment 8 de novo.


    A. FirstNet is exempt from FOIA.


        The dismissal of Counts 1–5 and 16 on the basis that FirstNet is
exempt from FOIA turns on the statutory interpretation of a provision
of FirstNet’s enabling statute, 47 U.S.C. § 1426(d)(2). That provision
states, in relevant part:


        (d) . . . Any action taken or decisions made by the First
        Responder Network Authority shall be exempt from the
        requirements of—
        ...
            (2) chapter 5 of title 5 (commonly referred to as the
            Administrative Procedure[] Act); . . .

Plaintiffs argue that, although FOIA is codified at 5 U.S.C. § 552,
within chapter 5 of title 5, § 1426(d)(2) does not exempt FirstNet from
FOIA because FOIA is “not commonly referred to as the
Administrative Procedure[] Act” (APA). 9 Defendant, in turn,
contends that the “commonly referred to” language is simply a
parenthetical reminder that does not change the plain meaning of the
text exempting FirstNet from the requirements of chapter 5 of title 5.



7 Kelleher v. Fred A. Cook, Inc., 

, 467 (2d Cir. 2019); Connecticut v. Duncan,

, 112 (2d Cir. 2010).
8 Jackson v. Fed. Express, 

, 193–94 (2d Cir. 2014).

9 Plaintiffs-Appellants Br. at 11.
7                                                                       No. 18-2819

       We agree with defendant. For any statutory interpretation
question, we “begin with the plain language, giving all undefined
terms their ordinary meaning while attempting to ascertain how a
reasonable reader would understand the statutory text, considered as
a whole.” 10 Here, the language of § 1426(d)(2) is unambiguous:
FirstNet “shall be exempt from the requirements of . . . chapter 5 of
title 5.” It is true, as plaintiffs argue, that the term “APA” is commonly
used to refer to that statute’s provisions on rulemaking and judicial
review of agency action, rather than to the subset of provisions
enacted as part of FOIA. As the district court correctly observed,
however, that common usage does not negate that “FOIA is codified
in company with the more familiar provisions of the APA within Title
5, Chapter 5.” 11
       Although the plain meaning of § 1426(d)(2) is sufficient to end
our inquiry, 12 we note that the statutory history of the APA supports
our conclusion that FirstNet is exempt from FOIA. To begin, although
the term “APA” is not commonly used to refer to FOIA, the Supreme
Court has explained that “[t]he statute known as the FOIA is actually
a part of the Administrative Procedure Act.” 13 The location of FOIA
within the APA was deliberate. Even before Congress enacted FOIA
in 1966, the APA contained a “Public Information” provision, § 3, 14
that required agencies to publish any rules, opinions, and orders that



10 Deutsche Bank Nat’l Trust Co. v. Quicken Loans Inc., 

, 868 (2d Cir. 2015)
(internal quotation marks and alterations omitted).
11 App’x 216.

12 See Devine v. United States, 

, 551 (2d Cir. 2000) (citing Rubin v. United

States, 

, 430 (1981)) (“In the usual case, if the words of a statute are
unambiguous, judicial inquiry should end, and the law is interpreted according to
the plain meaning of its words.”).
13 U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 

, 754

(1989).
14 Pub. L. No. 79–404, § 3, 60 Stat. 237, 238 (1946).
8                                                                          No. 18-2819

affected the public’s rights and obligations. 15 FOIA was enacted
expressly “[t]o amend section 3 of the Administrative Procedure Act
. . . to clarify and protect the right of the public to information.” 16 In
1967, shortly before FOIA took effect, Congress moved the provisions
that comprise FOIA from 5 U.S.C. § 1002 to their current location
within the codified version of the APA at 5 U.S.C. § 552. 17
        Finally, we reject plaintiffs’ argument that the OPEN FOIA Act
of 2009, 18 which amended 5 U.S.C. § 552(b)(3), invalidates statutory
FOIA exemptions enacted after 2009 that do not specifically cite
subsection (b)(3)(B) of § 552. 19 Section 552(b)(3), known as FOIA

15 See H.R. Rep. No. 79–1980, at 21 (1946).
16 Pub. L. No. 89–487, 80 Stat. 250, 250 (1966); see also Dep’t of the Air Force v. Rose,

, 360 (1976) (“The [Freedom of Information] Act revises § 3, the public
disclosure section, of the Administrative Procedure Act”); Renegotiation Bd. v.
Bannercraft Clothing Co., 

, 12 (1974) (noting that FOIA “was enacted in
1966 . . . as a revision of § 3 of the Administrative Procedure Act”).
17 See Pub. L. No. 90–23, 81 Stat. 54 (1967).

18 See Pub. L. 111-83, § 564(b), 123 Stat. 2142, 2184 (2009).

19 As amended by the OPEN FOIA Act, § 552(b) states in relevant part:

         (b) This section does not apply to matters that are—
                  (1)
                           (A) specifically authorized under criteria established by an
                           Executive order to be kept secret in the interest of national
                           defense or foreign policy and (B) are in fact properly
                           classified pursuant to such Executive order;
                  (2) related solely to the internal personnel rules and practices of an
                  agency;
                  (3) specifically exempted from disclosure by statute (other than
                  section 552b of this title), if that statute—
                           (A)
                                    (i) requires that the matters be withheld from the
                                    public in such a manner as to leave no discretion on
                                    the issue; or
                                    (ii) establishes particular criteria for withholding or
                                    refers to particular types of matters to be withheld;
                                    and
                           (B) if enacted after the date of enactment of the OPEN FOIA
                           Act of 2009, specifically cites to this paragraph.
9                                                           No. 18-2819

Exemption 3, applies to records “specifically exempted from
disclosure by statute” when the statute “(i) requires that the matters
be withheld from the public in such a manner as to leave no discretion
on the issue” or “(ii) establishes particular criteria for withholding or
refers to particular types of matters to be withheld.” 20 Exemption 3
also requires that a statute enacted after the OPEN FOIA Act of 2009
must “specifically cite[] to this paragraph.” 21
        Contrary to plaintiffs’ argument, Exemption 3 does not apply
to agencies in their entirety but instead to certain types of records
maintained by agencies—that is, to “matters that are . . . specifically
exempted from disclosure by statute.” 22 As the district court
observed, because 47 U.S.C. § 1426(d)(2) is “not a specific exemption
of matters from disclosure, but rather a general exemption of an entire
administrative agency from all of the obligations of FOIA,” 23
Exemption 3 has no application here.
        In light of the plain language of 47 U.S.C. § 1426(d)(2) and the
statutory history of the APA, we hold that § 1426(d)(2) exempts
FirstNet from FOIA. We therefore affirm the district court’s dismissal
of Counts 1–5 and 16.


     B. An agency need not search for records if it has reasonably
        determined that a search would be futile.


        Plaintiffs appeal the district court’s grant of summary
judgment for defendant on Counts 6–15. The district court concluded
that the NTIA and the DOC—which are not exempt from FOIA—
adequately responded to plaintiffs’ FOIA requests. Based on sworn

20 5 U.S.C. § 552(b)(3)(A).
21

App’x 218.
10                                                                      No. 18-2819

declarations from NTIA and DOC officials explaining why the agency
would not have responsive records, the district court determined that
the agency did not violate FOIA by declining to conduct a search. 24
Plaintiffs challenge the district court’s determination that there was
no genuine dispute of material fact that a search would be futile, as
well as its conclusion that declining to conduct a search was an
adequate response to plaintiffs’ FOIA requests. This challenge is
unavailing.
        The legal question is one of first impression in the Second
Circuit, as we have not previously defined the circumstances under
which an agency may decline to perform a search in response to a
FOIA request. The standard applied by the D.C. Circuit, which has
particular FOIA expertise, 25 is that when faced with a FOIA request,
an agency must conduct an “adequate” search, with “adequacy . . .
measured by the reasonableness of the effort in light of the specific
request.” 26 To respond “adequately,” an agency must show that “it
made a good faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the
information requested.” 27



24 See

We recognize the D.C. Circuit as “something of a specialist” in adjudicating
FOIA cases, “given the nature of much of its caseload.” Brennan Ctr. for Justice at
NYU v. U.S. Dep’t of Justice, 

, 200 (2d Cir. 2012).
26 Larson v. Dep’t of State, 

, 869 (D.C. Cir. 2009) (internal quotation

marks omitted). For our part, our Circuit has determined that a search was
“adequate” when it was “reasonably calculated to discover the requested
documents.” Grand Cent. P’ship, Inc. v. Cuomo, 

, 489 (2d Cir. 1999)
(quoting SafeCard Servs., Inc. v. S.E.C., 

, 1201 (D.C. Cir. 1991)).
27 Oglesby v. U.S. Dep’t of the Army, 

, 68 (D.C. Cir. 1990). To be an “agency

record,” a record must meet two requirements: first, the “agency must either create
or obtain the requested material,” and second, it “must be in control of the
requested material at the time the FOIA request is made.” U.S. Dep’t of Justice v.
Tax Analysts, 

, 144–45 (1989) (internal quotation marks omitted).
11                                                                       No. 18-2819

        Drawing primarily from cases within the D.C. Circuit that have
considered the circumstances under which an agency may decline to
conduct a FOIA search, 28 the district court concluded that “when an
agency reasonably determines, based on the nature of the request and
the scope of the agency’s operations, that it is unlikely to have
responsive records and that a search is likely to be futile, it need not
proceed with a search.” 29 That is because, as the district court for the
District of Columbia explained in MacLeod v. United States Department
of Homeland Security, “[i]t is clear beyond cavil that an agency cannot
improperly withhold records that it does not maintain, and that
‘where the Government’s declarations establish that a search would
be futile, the reasonable search required by FOIA may be no search at



28 See App’x 220 (citing MacLeod v. U.S. Dep’t of Homeland Sec., No. 15-cv-1792 (KBJ),

at *11 (D.D.C. Sept. 21, 2017) (“[W]here the Government’s
declarations establish that a search would be futile, the reasonable search required
by FOIA may be no search at all.”) (quoting Reyes v. U.S. Envtl. Prot. Agency, 

, 27 (D.D.C. 2014)); Jenkins v. U.S. Dep’t of Justice, 

,
235 (D.D.C. 2017) (where an agency demonstrates it is unlikely to possess
responsive records, it is not required to conduct a search); Earle v. U.S. Dep’t of
Justice, 

, 123–24 (D.D.C. 2016) (granting summary judgment for
agency where declarant explained that the agency did not maintain the records
sought); Cunningham v. U.S. Dep’t of Justice, 

, 85–86 (D.D.C. 2014)
(granting summary judgment for agency where the agency demonstrated that a
search would be futile because it does not maintain the requested records); Espino
v. U.S. Dep’t of Justice, 

, 28 (D.D.C. 2012) (granting summary
judgment to the agency where it submitted “sufficiently detailed and non-
conclusory” declarations “to demonstrate the adequacy of its search”); Amnesty
Int’l USA v. CIA, No. 07 Civ. 5435 (LAP), 

, at *11 (S.D.N.Y. June
19, 2008) (no search required where declarations of agency officers reasonably
describe that, based on their knowledge of their offices, they would not have
responsive records); Am.-Arab Anti-Discrimination Comm. v. US. Dep’t of Homeland
Sec., 

, 88 (D.D.C. 2007) (FOIA does not require a search for
records an agency does not maintain)).
29 App’x 221. (Although we conclude that the district court erred by using the more

forgiving “likely to be futile” formulation, we also determine that it nonetheless
reached the correct conclusion.)
12                                                                No. 18-2819

all.’” 30 The district court for the Southern District of New York
likewise concluded in Amnesty International USA v. CIA that “FOIA
does not demand a search that would be futile.” 31 We see no reason
to depart from the sensible and persuasive approach employed by the
courts that have considered this question, and we therefore conclude
that an agency need not conduct a search that it has reasonably
determined would be futile.
       Plaintiffs attempt to limit the cases cited by the district court to
their facts, arguing that an agency may only decline to conduct a
search when (i) no records exist because the subject of the request
does not exist, (ii) consultation with knowledgeable agency officials
indicates that no records exist because the agency has not engaged
with the subject matter, or (iii) the subject matter is plainly beyond the
purview of the agency. As the district court observed, however, the
“unifying principle” that emerges from the decisions addressing this
question is not so limited but instead supports the broader rule that
an agency need not conduct a search that it has reasonably
determined would be futile. 32
       Turning to the application of that standard, we conclude that
the district court correctly granted summary judgment for defendant.
On summary judgment in FOIA litigation, affidavits submitted by an
agency are “accorded a presumption of good faith.” 33 Plaintiffs’ FOIA
requests concerned communications and agreements between
FirstNet and various third parties (save for their fifth request
concerning the Portal’s terms of use, in response to which the NTIA


30 MacLeod, 

, at *11 (alterations omitted) (quoting Reyes, 991 F.
Supp. 2d at 27).
31 Amnesty Int’l USA, 

, at *11.

32 App’x 221.

33 Grand Cent. 

(internal quotation marks and citations

omitted).
13                                                                    No. 18-2819

produced five responsive records). 34 The agency declarations
explained that FirstNet is an independent entity that, with few
exceptions not relevant here, may act without the approval of—and
without even consulting—the NTIA or the DOC. 35 The declarations
detail specifically why the agency employees reasonably determined
that a search for responsive records would be futile. For example, in
response to the request for copies of all user comments submitted to
FirstNet, Kathy Smith, NTIA’s Chief Counsel and FOIA Officer,
explained that “NTIA personnel did not have regular access to the
FirstNet State Plan Portal.” 36 Similarly, in response to the request for
copies of all contracts with AT&T pertaining to FirstNet, Smith stated
that NTIA “is not a party to the contract between FirstNet and
AT&T.” 37 And Michael J. Toland, DOC’s Deputy Chief FOIA Officer,
explained that it would be futile to search for responsive documents
related to requests about FirstNet because “DOC does not have access
to the FirstNet State Plan portal; DOC does not maintain copies of
FirstNet’s contracts, agreements, memoranda of understanding, and
similar documents; and there is no reason to believe that DOC would
have copies of communications from state government officials to


34 Plaintiffs requested “copies of all user comments submitted to the FirstNet State
Plan Portals” (Request 1), App’x 67; “all communications from any state
government officials to [FirstNet], which the agency considers to be agreements
(or proposed agreements) to ‘opt-in’ to the FirstNet system” (Request 2), App’x 69;
“all contracts, agreements, memoranda of understanding, etc., with AT&T
pertaining to [FirstNet]” (Request 3), App’x 72; “copies of all [FirstNet] plans (and
associated correspondence, such as notification letters) made available to U.S.
governors” during the specified time period (Request 4), App’x 78; terms of use
for the Portal and associated documents (Request 5), App’x 83; and “all
correspondence sent by states or territories to FirstNet affirmatively opting out of
the FirstNet system” (Request 6), App’x 88.
35 See 47 U.S.C. § 1424(a) (establishing FirstNet as an “independent authority within

the NTIA”).
36 App’x 93.

37

                                                            No. 18-2819

FirstNet with an election to ‘opt in’ to the FirstNet system.” 38 These
details adequately explain why defendant would not have records
responsive to those requests: the records sought concerned an
independent entity’s external communications, in which defendant
was not required to be involved.
          Plaintiffs have submitted no evidence to rebut the presumption
of good faith accorded to the declarations. Instead, they argue
unsuccessfully that the declarations themselves are insufficient to
quell a genuine dispute that the agency’s response was adequate.
Accordingly, we affirm the district court’s determination that there
was no genuine dispute of material fact as to the futility of a search
by the agency for responsive records.


      C. Plaintiffs’ remaining claims.


          Plaintiffs next challenge the district court’s determination that
the agency declarations establish beyond genuine dispute that the
NTIA and the DOC did not have a practice or policy of referring FOIA
requests to FirstNet, in violation of FOIA (Count 17). This challenge
is meritless. Plaintiffs concede that “there would be no harm” if the
agency were to conduct a search before referring the requests to
FirstNet, arguing instead that “[t]he harm comes when DOC
components refer requests to FirstNet without performing a search.” 39
As we have discussed, however, an agency may decline to perform a
search if it reasonably determines that a search will be futile, as was
the case here.
          Moreover, the agency declarations explained that the agencies
do not have a “policy of automatically referring to FirstNet all FOIA


38

  Plaintiffs-Appellants Br. at 34 (emphasis in original).
15                                                                      No. 18-2819

requests for records involving FirstNet.” 40 Instead, each agency
makes a “case-by-case determination whether it is likely to have
responsive records,” and “[w]hen [it] determines that it might have
responsive records, it conducts a search.” 41 This explanation is
consistent with the fact that the NTIA produced five records
responsive to plaintiffs’ fifth FOIA request. Plaintiffs have not
provided any evidence to rebut the presumption of good faith
accorded to the declarations. We therefore affirm the district court’s
grant of summary judgment for defendant on Count 17.
        Finally, plaintiffs allege that defendant violated § 208 of the
E-Government Act of 2002 42 by failing to conduct a privacy impact
assessment regarding personal information gathered via FirstNet
(Count 18). 43 Plaintiffs affirmatively waived this claim as it relates to
the Portal, so we consider it only as it pertains to the NPSBN and any
related systems. 44 We agree with the district court that “claims about
the privacy of any personal information that might be collected by
future FirstNet systems when they do come into existence are not yet
ripe for judicial review.” 45 And as the district court concluded, there

40 App’x 124 (Toland Decl. ¶ 21); see also App’x 94 (Smith Decl. ¶ 20) (“NTIA does
not have a policy of automatically referring all FOIA requests for records about
FirstNet to FirstNet.”).
41

(Smith Decl. ¶ 20).

42 44 U.S.C. § 3501 note.

43 The parties do not dispute that defendant has conducted only one privacy

impact assessment, for the NTIA-035 FirstNet General Support System. That
assessment was available on the DOC’s public website. See App’x 238.
44 Plaintiffs-Appellants Br. at 35 (stating that plaintiffs “no longer have any interest

in the Portal” and that their argument on appeal concerns only defendant’s alleged
“failure to issue a [privacy impact assessment] for the NPSBN and any related
systems”).
45 App’x 223. The district court first addressed ripeness in its opinion dated

December 20, 2017, concluding that the claim was not ripe because the NPSBN
was not yet operational.

that Count 18 seeks relief for the lack
of privacy impact assessments for systems not yet in existence, such a claim is not
16                                                                       No. 18-2819

is no genuine dispute as to whether the NPSBN is operational: it is
not. 46 Plaintiffs therefore cannot have been harmed by the absence of
a § 208 privacy assessment. Specifically, we reject plaintiffs’ assertion
that the district court abused its discretion in denying their motion to
strike the declaration of Paul Madison, Chief Counsel for the FirstNet
Authority, which defendant submitted along with its supplemental
briefing on Count 18 to show that the NPSBN was not yet
operational. 47 The media sources plaintiffs identified to show that the
NPSBN was operational refer not to the NPSBN but rather to other
services provided by AT&T that are marketed under the FirstNet
brand. Such mismatched evidence is insufficient to rebut the
presumption of good faith accorded to Madison’s statement that the
NPSBN is not yet operational. 48
        Lastly, the parties spill much ink over whether plaintiffs have
statutory standing to bring a claim under § 208. We do not reach this
question. Having concluded that plaintiffs’ claim is not ripe for
review, we do not have subject matter jurisdiction to address whether




ripe for judicial review.”). In supplemental briefing on the § 208 claim as it related
to the Portal, the parties raised additional facts regarding whether the NPSBN was
yet operational: plaintiffs cited to various media stories to show that the NPSBN
was operational, and the DOC submitted an additional declaration from Paul
Madison, Chief Counsel for the FirstNet Authority, to show that it was not. See

The district court concluded that “the Madison declaration establishe[d]
beyond genuine dispute that the NPSBN remains nonoperational” and that “[t]o
the extent that the Section 208 claim relates to the NPSBN, it remains unripe for
review.”

See

(Madison Decl. ¶ 4), 240; see Boyce v. Soundview Tech. Grp., Inc., 

, 385 (2d Cir. 2006) (employing the abuse-of-discretion standard to review a
district court’s evidentiary ruling).
48 See Grand Cent. P’ship, 

(stating that agency affidavits are

“accorded a presumption of good faith” in FOIA litigation).
17                                                                       No. 18-2819

plaintiffs fall within the zone of interests of § 208 and, therefore,
whether they have a cause of action under that provision. 49

                                  CONCLUSION
        For the reasons discussed above, we AFFIRM the judgment of
the district court.




49See Lexmark Int’l, Inc. v. Static Control Components, Inc., 

, 127–28 (2014)
(concluding that the zone-of-interests analysis is a question of statutory
interpretation that “requires us to determine the meaning of the congressionally
enacted provision creating a cause of action”); Steel Co. v. Citizens for a Better Env’t,

, 94–95 (1998) (“The requirement that jurisdiction be established as a
threshold matter springs from the nature and limits of the judicial power of the
United States and is inflexible and without exception.” (internal quotation marks
and alterations omitted)).