Daniel Barbosa, et al. v. Department of Homeland Security, et al.

The Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(1), “require[s]” agencies to publish certain rules, a mandate that affords no discretion in furthering Congress’s goal to prevent the use of “secret (agency) law.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975). Congress protected FOIA and the rest of the Administrative Procedure Act (“APA”) from inadvertent amendment by directing that subsequent statutes “may not be held to supersede or modify” the APA unless they do so “expressly.” 5 U.S.C. § 559. This petition concerns one such subsequent statute, the Stafford Act, which contains no express reference to the APA, and instead bars judicial review only of claims concerning “a discretionary function or duty” authorized by the Stafford Act itself. 42 U.S.C. § 5148. Even though section 5148 lacks the express statement required by section 559, and without holding that FOIA affords agencies any discretion to avoid publication, the D.C. Circuit held that the Stafford Act bars review of whether the Federal Emergency Management Agency (“FEMA”) has published the materials required by FOIA. The question presented is whether section 5148 bars review of claims that FEMA uses secret law in violation of FOIA’s mandatory requirements.