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07/22/83 Center For National v. Central Intelligence

July 22, 1983

ANDRES), APPELLANT

v.

CENTRAL INTELLIGENCE AGENCY, ET AL., APPELLEES 1983.CDC.196 DATE DECIDED: JULY 22, 1983



Before reaching the merits presented in this appeal we must determine whether we have jurisdiction to render a decision. Appellee CIA urges that we lack jurisdiction in this case since the district court has not reached a final judgment terminating all issues in dispute between the parties, and that this court therefore lacks jurisdiction under 28 U.S.C. § 1292(a) (1). We agree.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CENTER FOR NATIONAL SECURITY STUDIES, ET AL. (MONICA

Appeal from the United States District Court for the District of Columbia.

APPELLATE PANEL:

Tamm and Ginsburg, Circuit Judges, and John W. Peck,* Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit. Opinion for the court filed by Senior Circuit Judge Peck.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PECK

Appellant Center for National Security Studies sought disclosure of 12 categories of documents from the Central Intelligence Agency under the Freedom of Information Act , 5 U.S.C. § 552 et seq. CNSS's initial request for release of all documents was refused. Subsequent appeals were acknowledged by CIA but no action was taken. CNSS then filed suit in the United States District Court for the District of Columbia seeking judicial review of CIA's action. In a 15-count complaint appellant CNSS requested that CIA disclose each category of documents. Both parties moved for summary judgment as of documents containing the budget figure for the National Foreign Intelligence Program for fiscal motion for summary judgment. Appellant CNSS appeals this order to this court.

CNSS is a nonprofit public interest project based in Washington, D.C. Among its many activities, members of CNSS participate in discussion of national security matters through teaching at universities, testifying before Congress, and by publishing a monthly newsletter providing information on national security topics. During the past decade, under the leadership of its director, Morton H. Halperin, CNSS has taken a particular interest in the activities of the CIA. Through the use of FOIA, CNSS has secured information from various government agencies, including CIA, which it has used to both stir discussion of national security matters and to inform the general public.

Beginning in 1976 members of CNSS filed a series of FOIA requests with CIA seeking disclosure of documents concerning the activities and functions of the Agency. Each request was denied by CIA. Subsequent appeals by CNSS, while acknowledged by CIA, were not acted upon.

On August 11, 1978 CNSS *fn1 sought release of files containing the fiscal year 1979 budget figure for the CIA, the particular claim at issue in this appeal. On September 7, 1978 Charles Savige, on behalf of George Owens, Information and Privacy Coordinator for CIA, denied the request citing exemptions 1 and 3 of FOIA. *fn2

Pursuant to 5 U.S.C. § 552(a) (4) of FOIA, CNSS filed suit in the United States District Court for the District of Columbia seeking judicial review of CIA's refusals to disclose 12 categories of documents. *fn3 In count VII of the complaint, at issue in this case, CNSS sought disclosure of the fiscal year 1979 budget figure for the NFIP. *fn4 The NFIP budget figure constituted the amount of money allocated to all agencies in the United States government concerned with national intelligence matters including CIA, NSA, the Department of State and several others. Appellee CIA sought summary judgment on count VII, the NFIP budget figure, again claiming protection under FOIA exemptions 1 and 3. CIA, in relying on exemption 1, cited Executive Order 12065 and introduced an affidavit by Director of Central Intelligence William Casey in support of its motion. Casey stated that disclosure of the NFIP budget figure posed a "reasonable threat to national security." CIA based its exemption 3 argument on two statutory provisions, 50 U.S.C. §§ 403 (d) (3) and 403g (1981).

CNSS also sought summary judgment on count VII, the NFIP budget figure. It argued that testimony before Congress by former Director of Central Intelligence Admiral Stansfield Turner in 1978 as a matter of law refuted the contentions that disclosure of the NFIP budget figure was prohibited by Executive Order 12065, that its release posed a reasonable danger to national security, and that its release was prohibited by statute.

The district judge granted appellee CIA's motion for summary judgment. He held that as a matter of law exemption 1, on the basis of the Casey affidavit and Executive Order 12065, protected CIA from disclosure. CNSS appeals to this court arguing the district judge improperly granted CIA summary judgment since material questions of fact remained to be decided and, in the alternative, that the district judge should have granted its motion for summary judgment.

Federal courts are courts of limited jurisdiction. That jurisdiction is determined by Congress by statute within the confines of the Constitution. In general federal appellate courts have jurisdiction to review only final judgments of a district court. *fn5 28 U.S.C. § 1292, however, carves out a limited category of interlocutory orders where a circuit court has jurisdiction to review. In particular § 1292(a) (1) allows review of orders by a ...


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