A. Precedents Cited and Their Influence
1. The principal circuit authorities on reading-room relief
Animal Legal Def. Fund v. U.S. Dep’t of Agric. (ALDF), 935 F.3d 858 (9th Cir. 2019), supplies a central foundation. Animal-welfare organizations sought online publication of agency reports, settlement agreements, complaints, and related materials. The Ninth Circuit treated § 552(a)(4)(B) as containing separate injunction and production clauses and held that publication could be ordered. The Fifth Circuit adopts its core reasoning: limiting all relief to delivery of records to an individual would undermine Congress’s separate decision to require public access.
ALDF also explains why the dispute is not simply about giving relief to nonparties. In a reading-room case, the complainant’s statutory interest concerns public availability itself. Posting records online remedies that violation even though others necessarily benefit. Its treatment of frequently requested records is especially influential: forcing each person to request those records individually would defeat the mechanism Congress adopted to reduce repetitive requests and backlogs.
N.Y. Legal Assistance Grp. v. Bd. of Immigr. Appeals (NYLAG), 987 F.3d 207 (2d Cir. 2021), concerned access to the Board of Immigration Appeals’ nonprecedential opinions. It likewise recognized authority to order electronic reading-room publication. The Fifth Circuit draws heavily on its grammatical analysis: the conjunction “and,” the repeated infinitive “to,” and the placement of “from the complainant” support distinct remedial powers rather than a single complainant-limited remedy.
NYLAG also informs the opinion’s limits. It recognizes that injunctions should provide complete relief without imposing unnecessary burdens, and that courts should account for agency workload through realistic compliance schedules. Thus, it supports both the availability of publication orders and caution in their design.
Citizens for Responsibility and Ethics in Washington v. United States Department of Justice (CREW), 846 F.3d 1235 (D.C. Cir. 2017), occupies a more complex position. Addressing Office of Legal Counsel opinions, CREW accepted prospective relief, including an affirmative disclosure obligation reaching opinions not yet written. The Fifth Circuit relies on that conclusion to reject FEMA’s contention that FOIA necessarily stops at records existing when a request is submitted.
But CREW limited disclosure relief to the complainant. The Fifth Circuit rejects that limitation, explaining that CREW followed binding D.C. Circuit precedent rather than independently resolving the first remedial clause as the Fifth Circuit does here. Accordingly, CREW supports prospective enforcement while marking the precise point of inter-circuit disagreement over public publication.
Kennecott Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191 (D.C. Cir. 1996), was the precedent constraining CREW. It involved a demand for Federal Register publication under § 552(a)(1) and reasoned that giving documents to the requester fully remedied that requester’s informational injury. The Fifth Circuit observes that Kennecott concentrated on the production clause and did not comparably examine the independent injunction clause. Its different statutory setting and narrower analysis reduce its persuasiveness here. The present decision does not itself resolve the full scope of publication remedies under § 552(a)(1).
2. Supreme Court decisions FEMA read too broadly
Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980), identifies three predicates: an agency must have improperly withheld agency records. FEMA treated this formulation as excluding prospective relief. The Fifth Circuit instead emphasizes the underlying dispute: records had left the agency’s possession before the request, and the Supreme Court held that FOIA did not require their retrieval. Kissinger expressly left the full meaning of prohibited withholding unresolved. It therefore does not decide whether courts may prevent recurring violations involving records later created or obtained.
United States Department of Justice v. Tax Analysts, 492 U.S. 136 (1989), required the Justice Department to disclose court decisions it had obtained during tax litigation. Its agency-records analysis addressed creation or acquisition and agency control; it also rejected the contention that directing a requester elsewhere necessarily satisfies FOIA. The Fifth Circuit reads those holdings in context, not as a categorical prohibition on injunctions governing future compliance.
The resulting distinction is important: a court cannot ordinarily use FOIA to require an agency to draft the substantive records a requester wants or retrieve materials outside its control. But it may require future compliance with an existing disclosure duty when qualifying records later come into agency possession.
Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Hum. Servs., 874 F.3d 287 (D.C. Cir. 2017), reinforces this contextual approach by distinguishing decisions about which existing documents qualify as agency records from decisions about the propriety of injunctive relief. Similarly, Nolen v. Rumsfeld, 535 F.2d 890 (5th Cir. 1976), states that FOIA compels disclosure of existing records, but does not foreclose prospective enforcement of duties attaching to records once they exist.
3. Ongoing practices, recurrence, and agency assurances
Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988), supports challenges to continuing FOIA practices and rejects the assumption that eventual production or a promise to stop necessarily ends the dispute. The Fifth Circuit finds its treatment of a weak agency assurance particularly relevant. An undertaking must be evaluated against the history of conduct; it cannot simply erase evidence suggesting recurrence.
Jud. Watch, Inc. v. U.S. Dep’t of Homeland Sec. (Judicial Watch), 895 F.3d 770 (D.C. Cir. 2018), provides the principal framework for assessing a “cognizable danger” of repeated violations. Relevant considerations include the sincerity of promised compliance, the effectiveness of discontinued misconduct, the character of past violations, and especially the public consequences of disclosure or nondisclosure. Although Judicial Watch arose under § 552(a)(3), the Fifth Circuit considers its approach instructive for reading-room claims.
Judicial Watch also supports connecting repeated incidents involving the same subject matter. Here, unanswered requests, delayed publication, and earlier unpublished-rule litigation all concerned access to FEMA’s disaster-assistance standards. They could not fairly be dismissed as unrelated merely because they arose under different FOIA subsections.
Hajro v. U.S. Citizenship and Immigr. Servs., 811 F.3d 1086 (9th Cir. 2016), further demonstrates judicial recognition of policy-or-practice challenges in the records-request setting. The Fifth Circuit uses that line of authority without making its terminology restrictive: an unlawful continuing practice can be actionable even if it is not formally labeled or documented as an official “policy.”
Long v. I.R.S., 693 F.2d 907 (9th Cir. 1982), supplies an essential limit: prospective relief requires a probability of future recurrence. Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367 (2024), adds the constitutional requirement of a sufficient likelihood of future injury when an injunction is sought. Past misconduct therefore matters as evidence, but does not automatically establish entitlement to prospective relief.
Batton v. Evers, 598 F.3d 169 (5th Cir. 2010), performs two roles. Together with Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976), it articulates FOIA’s anti-secrecy purpose. It also recognizes a presumption of legitimacy for agency declarations absent evidence of bad faith. Crucially, Batton says that presumption does not relieve an agency of its obligation to demonstrate compliance.
U.S. Dep’t of State v. Ray, 502 U.S. 164 (1991), is the underlying authority quoted for that presumption. Neither Ray nor Batton makes an agency’s conclusory promise dispositive. Separately, Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 922 F.3d 480 (D.C. Cir. 2019), supports the agency’s statutory burden to sustain challenged withholding. That burden does not eliminate the plaintiff’s need to establish the prerequisites for prospective relief.
4. Traditional equitable authority and its limits
Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1 (1974), indicates that Congress did not generally intend FOIA to strip courts of their traditional equitable powers. Lewis v. Reagan, 660 F.2d 124 (5th Cir. Oct. 1981), provides supporting Fifth Circuit authority. Along with Payne, these decisions counter FEMA’s restrictive view of the remedial provision.
Brown v. Plata, 563 U.S. 493 (2011), emphasizes the breadth and flexibility inherent in equitable remedies. Kansas v. Nebraska, 574 U.S. 445 (2015), quoting Porter v. Warner Holding Co., 328 U.S. 395 (1946), explains that equitable authority is especially flexible where the public interest is involved. Virginian Ry. Co. v. Railway Employees, 300 U.S. 515 (1937), supplies the same public-interest principle. These authorities reinforce the statutory reading; they do not dispense with statutory boundaries or the need for an appropriate factual basis.
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994), supplies the counterweight: relief should not burden the defendant more than necessary to provide complete relief. Applied here, that principle discourages indefinite, nonspecific commands simply to obey FOIA and supports carefully defined records categories, obligations, and timelines.
Humane Soc’y of the U.S. v. U.S. Fish & Wildlife Serv., 838 F. App’x 721 (4th Cir. 2020), is identified as a narrow, unpublished decision rejecting prospective-relief authority. The Fifth Circuit acknowledges but does not follow it.
5. Exhaustion authorities
Hedley v. United States, 594 F.2d 1043 (5th Cir. 1979), establishes the Fifth Circuit’s treatment of FOIA exhaustion as jurisdictional. The present opinion does not abandon that characterization. Instead, it rejects FEMA’s assumption that exhaustion necessarily requires a request confined to already existing records.
Campaign for Accountability v. U.S. Dep’t of Just., 280 F. Supp. 3d 112 (D.D.C. 2017), and its reliance on Prisology, Inc. v. Fed. Bureau of Prisons, 852 F.3d 1114 (D.C. Cir. 2017), illustrate the importance of initially demanding agency compliance before bringing either a reading-room or ordinary request-based claim. They support distinguishing exhaustion in these two settings rather than mechanically treating them as identical.
McKart v. United States, 395 U.S. 185 (1969), directs attention to exhaustion’s purposes and the particular administrative scheme. Brook v. Holzerland, No. 24-40640, 2025 WL 2254514 (5th Cir. Aug. 7, 2025), supplies related support through constructive exhaustion when an agency fails to respond within statutory deadlines. Together, these authorities permit meaningful enforcement without requiring an endless cycle of new demands for each later-created document covered by an alleged continuing violation.
6. Textual interpretation and grammar
United States v. Moore, 71 F.4th 392 (5th Cir. 2023), citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010), establishes the text-first method. The court begins with statutory language rather than allowing generalized remedial preferences to decide the dispute.
Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011), supports reading “and” as connecting independent ideas. Bruce v. First Fed. Sav. & Loan Ass’n of Conroe, Inc., 837 F.2d 712 (5th Cir. 1988), shows that context can justify a disjunctive understanding of “and.” Caraco Pharm. Lab’ys, Ltd. v. Novo Nordisk A/S, 566 U.S. 399 (2012), answers FEMA’s objection that Congress could have used clearer wording: the possibility of clearer drafting does not defeat the most natural reading.
Gustafson v. Alloyd Co., 513 U.S. 561 (1995), supplies the associated-words principle, under which statutory terms derive meaning from their context. Carr v. United States, 560 U.S. 438 (2010), supports examining verb tense to determine temporal reach. D.L. Markham DDS, MSD, Inc. 401(K) Plan v. Variable Annuity Life Ins. Co., 88 F.4th 602 (5th Cir. 2023), illustrates the continuing-action significance of a present participle. These authorities inform the distinction between ongoing “withholding” and records already “withheld.”
Cascabel Cattle Co., L.L.C. v. United States, 955 F.3d 445 (5th Cir. 2020), supports consulting dictionaries. Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014), and Van Loon v. Dep’t of the Treasury, 122 F.4th 549 (5th Cir. 2024), support using definitions from the period of enactment. The opinion accordingly consults historical definitions of “and” and “enjoin.” Netsphere, Inc. v. Baron, 799 F.3d 327 (5th Cir. 2015), reinforces selection of the interpretation requiring less grammatical distortion.
Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), provides the series-qualifier rule: a modifier following a straightforward parallel series ordinarily applies throughout the series. The Fifth Circuit distinguishes that grammatical structure. FOIA contains two distinct infinitive phrases with different direct objects, repeats “to,” and lacks a comma separating the final modifier. Those differences support confining “from the complainant” to the production clause.
Torres v. Lynch, 578 U.S. 452 (2016), again cautions against making hypothetical improvements in drafting decisive. The court uses alternative formulations as illustrations, while grounding its conclusion in the enacted sentence.
The Scalia and Garner treatise, historical dictionaries, and other interpretive works cited in the opinion supplement these precedents. They are interpretive aids, not independent holdings establishing FOIA remedies.
7. Additional statutory remedies and FEMA-specific context
Am. Mail Line, Ltd. v. Gulick, 411 F.2d 696 (D.C. Cir. 1969), supports treating the restriction on reliance upon unpublished materials as nonexclusive. The ability to defend against use of a secret policy does not ensure that an agency will affirmatively publish all covered records.
LUPE v. FEMA, No. 1:08-cv-487, 2017 WL 2539451 (S.D. Tex. Feb. 15, 2017), is significant evidence of the parties’ earlier dispute over unpublished disaster-assistance rules. The prior court found a § 552(a)(1) violation and vacated the rule. The present opinion does not treat that result as automatically proving a current § 552(a)(2) violation, but regards it as relevant history.
Barbosa v. U.S. Dep’t of Homeland Sec., 263 F. Supp. 3d 207 (D.D.C. 2017), is cited as another example of related litigation over allegedly unpublished standards. The opinion does not develop its holding as a separate basis for the new remedial rule.
Ass’n of Cmty. Orgs. for Reform Now v. FEMA (ACORN), 463 F. Supp. 2d 26 (D.D.C. 2006), supplies the description of FEMA’s assistance process as “Kafkaeseque.” Its role is to illuminate the public stakes of inaccessible standards, not to establish the scope of FOIA jurisdiction.
Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727 (5th Cir. 2008), similarly records earlier judicial concern about FEMA’s processes following Hurricanes Katrina and Rita. Tucker v. Gladdis, 40 F.4th 289 (5th Cir. 2022), is cited specifically to Judge Ho’s concurrence regarding the broader consequences of delay. That citation should not be mistaken for a majority holding controlling the reading-room issue.
8. Appellate review and summary judgment
TIG Ins. Co. v. Woodsboro Farmers Coop., 117 F.4th 715 (5th Cir. 2024), and Jones v. Heuer, No. 24-50348, 2024 WL 4481852 (5th Cir. Oct. 14, 2024), support de novo review of jurisdictional dismissals, including under Rule 12(h)(3). Evanston Ins. Co. v. Mid-Continent Cas. Co., 909 F.3d 143 (5th Cir. 2018), supplies de novo review of cross-motions for summary judgment.
Springboards to Educ., Inc. v. Hou. Indep. Sch. Dist., 912 F.3d 805 (5th Cir. 2019), requires independent consideration of each motion and favorable evidentiary inferences for the nonmovant. Canadian Standards Ass’n v. P.S. Knight Co., 112 F.4th 298 (5th Cir. 2024), states the familiar requirement that no genuine dispute of material fact exist before judgment as a matter of law. These standards explain why reversal for FEMA does not amount to judgment for LUPE.
B. Legal Reasoning
1. The remedial sentence grants two powers
The court’s analysis begins by separating the statute into:
- authority “to enjoin the agency from withholding agency records”; and
- authority “to order the production of any agency records improperly withheld from the complainant.”
The conjunction, repeated infinitive, separate objects, and differing forms of “withhold” support that division. The first clause addresses continuing conduct; the second directly remedies an identified failure to produce records.
This reading also gives each clause independent work. If courts could only order production, the injunction clause would add little. The court acknowledges the competing redundancy argument—that broad injunctive power could encompass production—but resolves it by treating the clauses as complementary sources of relief with distinct functions. Its conclusion therefore rests on cumulative textual features, not the surplusage canon alone.
2. Prospective compliance is different from creating records
The verb “enjoin” ordinarily includes forward-looking commands. Coupled with “withholding,” it allows courts to restrain an ongoing practice rather than merely correct its completed effects.
That does not transform FOIA into a general duty to generate requested substantive information. An injunction can govern the handling of future qualifying records without requiring the agency to write them. The obligation attaches when records exist and come within the statute’s coverage.
3. Exhaustion does not nullify prospective enforcement
FEMA argued that future records could not have been requested and exhausted. The court rejects that premise: a demand can encompass an existing practice and future documents within the identified category. LUPE had expressly demanded continuing online disclosure and given FEMA an opportunity to respond.
The ruling preserves exhaustion while preventing it from becoming a structural barrier to any prospective injunction. It does not dispense with an initial agency demand or authorize unbounded litigation over unidentified future conduct.
4. “From the complainant” does not limit the injunction clause
The court’s grammatical analysis has direct remedial consequences. Because the final modifier belongs to the production clause, the injunction clause need not be confined to private delivery of copies.
This interpretation aligns the remedy with the violated duty. Section 552(a)(2) requires public inspection, not merely disclosure to whichever organization has the resources to sue. Otherwise, an agency could defeat a publication claim by privately producing records while leaving the public reading room incomplete.
The decision therefore does not authorize public relief unrelated to a plaintiff’s injury. Rather, public accessibility is the statutory condition whose absence generates the reading-room injury.
5. Other enforcement mechanisms are supplementary
The Office of Special Counsel provision refers specifically to production orders. FEMA argued that this demonstrated Congress’s expectation that production was the only judicial remedy. The court finds the inference insufficient: limiting one investigative mechanism to a particular context does not eliminate other remedies supplied by the operative jurisdictional text.
Likewise, the restriction on agency use of unpublished materials is not exclusive. A defense against a particular adverse decision does not secure systematic public access to covered records.
6. The record did not justify judgment for FEMA
The court identifies three connected reasons for further proceedings.
- Public consequences: FEMA distributed approximately $32 billion in IHP assistance between October 2020 and January 2024. Access to operative standards can materially affect applications and time-sensitive appeals.
- Qualified assurances: FEMA’s declaration promised evaluation under applicable law while declining to concede that previously released materials required publication or to determine future disclosure. That statement did not conclusively establish effective reform.
- Related historical conduct: Earlier unpublished-rule litigation, sixteen unanswered requests, and disclosure achieved only after judicial intervention could collectively support an ongoing-practice claim.
The panel particularly notes inspection guidance addressing storm-damaged basement rooms. Such guidance appears capable of governing an applicant’s success, illustrating why the disputed records might fall within the reading-room categories. But the court expressly leaves their legal classification unresolved.
The opinion’s references to a “plausible” case must therefore be read in procedural context. The court examined a summary-judgment record favorably to LUPE; it did not hold that allegations alone conclusively establish a practice or entitlement to an injunction.
7. The remand requires classification, prediction, and tailoring
The district court must first determine whether the disputed IHP materials are records covered by § 552(a)(2). It must then assess the likelihood of recurrent violations, future injury, traditional equitable considerations, and FOIA-specific public consequences.
Any remedy must match the proven violation. LUPE requested a prohibition on using IHP rules unless published online with an accessible index or in the Federal Register. The panel does not approve that wording. Its breadth requires careful evaluation, including the statute’s actual-and-timely-notice exception and the distinction between covered records and every document that might be called a “rule.”