La Union v. FEMA

Case: 24-40756 Document: 77 Page: 1 Date Filed: 10/22/2026 United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 24-40756 October 22, 2026 ____________ Thomas B. Plunkett, III Clerk La Union del Pueblo Entero, Plaintiff—Appellant, versus Federal Emergency Management Agency; United States Department of Homeland Security, Defendants—Appellees. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 5:21-CV-71 ______________________________ Before Southwick, Higginson, and Douglas, Circuit Judges. Stephen A. Higginson, Circuit Judge: La Unión del Pueblo Entero (LUPE) is a Texas-based organization that helps low-income Texans access federal assistance following natural disasters. For years, the organization has sought access to information about how the Federal Emergency Management Agency (FEMA) makes decisions about disaster-relief eligibility through Freedom of Information Act (FOIA) requests and separate litigation. LUPE alleges that FEMA has a policy or practice of violating Section 552(a)(2) of FOIA, 5 U.S.C. § 552(a)—also known as the law’s  Case: 24-40756 Document: 77 Page: 2 Date Filed: 10/22/2026 No. 24-40756 “reading-room provision”—which requires federal agencies to make available online certain documents on which it relies, along with an index of those documents, and prohibits agencies from relying on a certain subset of these documents in enforcement and other proceedings when an agency fails to make them public. The organization claims that FEMA relies on “secret rules” when making disaster-relief determinations and seeks an injunction requiring FEMA to publish them online moving forward. On this appeal, the central legal question we must resolve is whether FOIA’s remedial provision vests courts with the authority to redress ongoing violations of the statute’s reading-room provision by ordering prospective relief requiring an agency to post materials online. We conclude that, on the record before us, LUPE has plausibly alleged that FEMA has a practice of failing to comply with FOIA’s reading- room provision. We thus REVERSE the district court’s grant, in part, of FEMA’s motion, as well as the district court’s dismissal of the case with prejudice. However, these findings do not necessitate the legal relief LUPE requests, since additional record development is needed and equitable relief is in the sound discretion of the district court. We REMAND for further consideration consistent with this opinion. I. We begin with an overview of the statutory and regulatory background and continue with a discussion of the factual and procedural history of this case. A. Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Batton v. Evers, 598 F.3d 169, 175 (5th Cir. 2010) (quoting Dep’t of the Air Force v. Rose, 425 U.S. 2  Case: 24-40756 Document: 77 Page: 3 Date Filed: 10/22/2026 No. 24-40756 352, 361 (1976)). FOIA obligates federal agencies to make certain information available to the public, both affirmatively and in response to requests. See 5 U.S.C. § 552(a)(1)–(3). Specifically, the statute requires agencies to (1) publish certain documents in the Federal Register, (2) proactively make available certain documents for public inspection in an electronic format, and (3) provide records in response to requests, barring certain exceptions. Id. The second of FOIA’s affirmative-disclosure provisions requires that agencies “make available for public inspection in an electronic format” certain documents. 5 U.S.C. § 552(a)(2). This provision is commonly known as FOIA’s reading-room provision. See Animal Legal Def. Fund v. U.S. Dep’t of Agric. (ALDF), 935 F.3d 858, 862 (9th Cir. 2019) (explaining the historical origins of the “reading room” label). As relevant here, the documents the statute obligates agencies to place in their reading rooms include “statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register,” “administrative staff manuals and instructions to staff that affect a member of the public,” and “copies of all records” that have been released in response to a specific FOIA request and that either the agency determines have or are likely to become the subject of subsequent requests because of the “nature of their subject matter” or have been requested three or more times. 5 U.S.C. § 552(a)(2)(B)–(D). FOIA also compels agencies to “make available for public inspection in an electronic format current indexes providing identifying information for the public” for any document “required . . . to be made available or published” under Section 552(a)(2). Id. § 552(a)(2). And it prohibits agencies from relying on, using, or citing as precedent any “final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public” unless it has been indexed and made available or published in 3  Case: 24-40756 Document: 77 Page: 4 Date Filed: 10/22/2026 No. 24-40756 accordance with the section or the “party has actual and timely notice of the terms thereof.” Id. § 552(a)(2)(E). FOIA outlines the timeline by which an agency must respond to requests regarding its affirmative and responsive obligations and provides a limited administrative exhaustion requirement after which a party may seek relief in court. See id. § 552(a)(6)(A)–(C). Administrative remedies are deemed exhausted when an agency “fails to comply with the applicable time limit” and provides that “[u]pon any determination . . . to comply with a request for records, the records shall be made promptly available to such person making such request.” Id. § 552(a)(6)(C)(i). The statute also provides a private cause of action if agencies fail to comply with their disclosure obligations. Section 552(a)(4)(B) confers onto 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.” 5 U.S.C. § 552(a)(4)(B). That provision provides that “the court shall determine the matter de novo” and places “the burden . . . on the agency to sustain its action.” Id. FOIA separately requires the Office of the Special Counsel to investigate in cases where a court “orders the production of any agency records improperly withheld from the complainant” and issues a written finding raising questions about agency personnel’s actions with respect to the withholding. Id. § 552(a)(4)(F)(i). B. The Robert T. Stafford Disaster Relief Act of 1988 (Stafford Act), permits the President to provide federal aid, assistance, and emergency services after declaring a “major disaster.” Pub. L. No. 100–707, 102 Stat. 4689 (1988) (codified as amended at 42 U.S.C. §§ 5121–207) (amending the Disaster Relief Act of 1974). The law defines a major disaster as “any natural 4  Case: 24-40756 Document: 77 Page: 5 Date Filed: 10/22/2026 No. 24-40756 catastrophe” (such as a hurricane, tornado, storm, or drought), fire, flood, or explosion that the President determines “causes damage of sufficient severity and magnitude to warrant major disaster assistance.” 42 U.S.C. § 5122(2). The President has delegated most Stafford Act authority to FEMA. Delegation of Disaster Relief and Emergency Assistance Functions, 54 Fed. Reg. 12,571 (Mar. 28, 1989). In 2000, Congress amended the Stafford Act to establish the Federal Assistance to Individuals and Households Program (IHP). See Disaster Mitigation Act of 2000, Pub. L. No. 106-390, § 206, 114 Stat. 1552, 1566–71 (2000) (codified at 42 U.S.C. § 5174). IHP permits the President—and, as delegated, FEMA—to “provide financial assistance, and, if necessary, direct services, to individuals and households” who are in a state with a declared natural disaster and who “have necessary expenses and serious needs” that cannot be otherwise met. 42 U.S.C. § 5174(a)(1); see also id. § 5174(b)–(c) (outlining options to provide housing assistance). Congress also directed the President—and, in turn, FEMA—to promulgate additional rules and regulations for “determining eligibility for assistance.” Id. § 5174(j). FEMA has since enacted regulations on the registration period for aid, the amount and type of assistance available, and the eligibility requirements for disaster victims. Yet the regulations leave uncertain significant details about who is eligible for what amount of disaster assistance. As described in the briefing and in the record, the process for attaining disaster relief is as follows: A survivor whose home was damaged by a declared disaster applies for IHP assistance. FEMA sends an inspector to evaluate the damage. The inspector inputs findings into a FEMA system, which applies the agency’s eligibility rules and issues a decision letter. An “eligible” letter informs an applicant that they are eligible for assistance of a 5  Case: 24-40756 Document: 77 Page: 6 Date Filed: 10/22/2026 No. 24-40756 specific amount between $50 and$43,600 but does not explain “how FEMA calculated the amount of assistance” or “what criteria or standards FEMA relied on to decide on that precise amount.” An “ineligible” letter informs an applicant that they were “not approved” for home assistance because the “disaster ha[d] not caused [their] home to be unsafe to live in.” An individual may appeal an ineligibility determination within sixty days of receipt. 44 C.F.R. § 206.115(a). An appeal “must include a written explanation or verifiable documentation for the appeal,” id. § 206.115(b), that explains the reasons for the appeal. C. LUPE is a non-profit organization that provides services for low- income Texans, largely in South Texas. Disaster recovery efforts comprise part of the organization’s work, including by informing its members and the public about how to access disaster assistance. As a part of this disaster- recovery work, LUPE has sued FEMA on multiple occasions under FOIA, alleging, as it does here, that the agency has used “unpublished” or “secret” rules in deciding how to dole out disaster relief. See, e.g., LUPE v. FEMA, No. 1:08-cv-487, 2017 WL 2539451 (S.D. Tex. Feb. 15, 2017); Barbosa v. U.S. Dep’t of Homeland Sec., 263 F. Supp. 3d 207 (D.D.C. 2017). LUPE has also submitted multiple FOIA requests seeking documents related to the standards FEMA uses for disaster-recovery relief. In 2008, the organization sued the agency for an alleged violation of Section 552(a)(1); after ten years of litigation, the district court agreed that FEMA violated FOIA and vacated the pertinent rule. See LUPE v. FEMA, 2017 WL 2539451, at *2–5. Between August 2020 and March 2021, LUPE submitted sixteen FOIA requests under Section 552(a)(3) seeking documents related to its IHP standards for sixteen different disasters but received no documents. In October 2020, LUPE also sent a letter to FEMA 6  Case: 24-40756 Document: 77 Page: 7 Date Filed: 10/22/2026 No. 24-40756 “describing the agency’s responsibility to proactively post its IHP guidance and standards to an electronic reading room under Section 552(a)(2),” which elicited no response. In May 2021, LUPE submitted a request under Section 552(a)(2), asking FEMA to “make publicly available in its online electronic reading room” records that: (a) “communicate” to any FEMA employee or contractor: “any substantive or procedural standard that is or will be used . . . to help decide any application for [IHP] assistance” following a disaster declared after January 1, 2019; and (b) “state any future change to any existing substantive or procedural IHP standard” described in (a). FEMA acknowledged receipt of the request but did not produce the documents. LUPE subsequently filed suit in July 2021 against FEMA and the Department of Homeland Security (of which FEMA is a part), asserting claims under both FOIA and the Administrative Procedure Act (APA). It sought declaratory and injunctive relief, including an order requiring FEMA to produce the “complete administrative record,” including all documents relied on to defend the actions challenged in this litigation, and to publish IHP eligibility standards used after January 1, 2019 (including future standards) in an electronic reading room. FEMA conducted a search and began producing documents to LUPE on a rolling basis. FEMA did not concede that the materials qualified for proactive disclosure under Section 552(a)(2). The agency redacted a large portion of the 4,350 pages produced. In October 2022, FEMA then moved to dismiss or, in the alternative, for summary judgment, which the district court granted in part in August 2023. The district court concluded that it lacked jurisdiction over the APA claims, and that there was a genuine dispute of material facts as to the adequacy of FEMA’s search thus far. The district court provided that 7  Case: 24-40756 Document: 77 Page: 8 Date Filed: 10/22/2026 No. 24-40756 Section 552(a)(4)(B) “authorizes prospective injunctive relief as a remedy,” but declined to address whether the provision “authorizes courts to order agencies to post documents online” and “whether a prospective injunction can enforce the electronic reading room requirement.” The district court also ordered FEMA to conduct a secondary search for documents created between January 1, 2019, and January 19, 2022, and to enter mediation as to documents post-dating that period. FEMA subsequently produced 6,000 pages of additional documents, unredacted copies of documents from the original productions, and an index, all of which it posted to its reading room. The previously unreleased documents included policies and guidelines used to determine IHP eligibility. The parties agreed that FEMA’s subsequent production of records between January 1, 2019, and January 19, 2022, was adequate, and agreed to defer mediation on the post-January 2022 documents until the district court ruled on the scope of Section 552(a)(4)(B). In January 2024, the parties traded cross-motions for summary judgment. FEMA again moved to dismiss, or, in the alternative, for summary judgment, arguing that the case was moot, that LUPE’s claim “fails as a matter of law,” and that the district court should not enter a “prospective injunction concerning future documents.” FEMA’s short, combined motion made two summary judgment arguments: first, that LUPE did not meet the standard for prospective relief—should it even be permitted under FOIA—because the organization could not show that the agency had a policy or practice of violating Section 552(a)(2); and second, that the court lacked authority to order the agency to post records online. It offered in support of its first contention the declaration of a FEMA employee (the Bridges Declaration) providing that the agency would “evaluate[]” documents moving forward “based on the applicable law.” 8  Case: 24-40756 Document: 77 Page: 9 Date Filed: 10/22/2026 No. 24-40756 LUPE cross-moved for summary judgment, asserting that Section 552(a)(4)(B) permitted the district court to “order FEMA’s compliance with [Section] 552(a)(2),” that FEMA has a “policy or practice of using unpublished IHP rules in violation of FOIA,” and that the circumstances warranted injunctive relief. The organization sought an injunction prohibiting FEMA officials from “us[ing] any rule to decide any part of any application for assistance” under the IHP program, unless it was published on “FEMA’s website with an index that makes the rule reasonably accessible to the public” or “in the Federal Register.” In September 2024, the district court granted in part and denied in part the government’s motion to dismiss or, in the alternative, for summary judgment and denied LUPE’s motion for summary judgment. The district court concluded that LUPE’s request was not frivolous (that is, the organization’s claim did not fail as a matter of law) and that, although FEMA had fully responded to LUPE’s FOIA request, the organization’s “policy- or-practice claim” was not moot. It further found that LUPE had failed to establish that FEMA has a policy or practice of violating FOIA. It declined to reach the question of whether Section 552(a)(4)(B) authorizes courts to order agencies to post documents online. The district court issued its final judgment on the same day, dismissing the case with prejudice. LUPE timely appealed. II. We review motions to dismiss for lack of jurisdiction and cross- motions for summary judgment de novo. See TIG Ins. Co. v. Woodsboro Farmers Coop., 117 F.4th 715, 721 (5th Cir. 2024) (motion to dismiss); Evanston Ins. Co. v. Mid-Continent Cas. Co., 909 F.3d 143, 146 (5th Cir. 2018) 9  Case: 24-40756 Document: 77 Page: 10 Date Filed: 10/22/2026 No. 24-40756 (cross-motions for summary judgment).1 In so doing, we examine “each party’s motion independently” and view “the evidence and inferences in the light most favorable to the nonmoving party.” Springboards to Educ., Inc. v. Hou. Indep. Sch. Dist., 912 F.3d 805, 811 (5th Cir. 2019) (citation omitted). We generally grant summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Canadian Standards Ass’n v. P.S. Knight Co., 112 F.4th 298, 303 (5th Cir. 2024), cert. denied, 145 S. Ct. 1135 (2025) (quoting Fed. R. Civ. P. 56(a)). III. Section 552(a)(4)(B) provides courts with “jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). At issue in this case is whether this provision permits district courts to address agencies’ practices, remedy ongoing reading-room violations by issuing prospective relief, and require the violating agency to post qualifying materials online. We first conclude that Section 552(a)(4)(B) includes two clauses: the enjoin-from-withholding clause and the order-production clause. We then explain why the enjoin-from-withholding clause empowers courts to issue prospective relief. Next, we resolve why ordering agencies to post materials online presents a permissible form of relief in reading-room cases. We finally _____________________ 1 We note that FEMA urged the district court to dismiss for lack of jurisdiction under Rule 12(h)(3), which mandates district court dismissal of an action if the district court determines that it lacks subject matter jurisdiction. Fed. R. Civ. P.12(h)(3). We have historically reviewed dismissal under Rule 12(h)(3) for lack of subject-matter jurisdiction de novo, see Jones v. Heuer, No. 24-50348, 2024 WL 4481852, at *2 (5th Cir. Oct. 14, 2024) (per curiam) (collecting cases), and so do the same here. 10  Case: 24-40756 Document: 77 Page: 11 Date Filed: 10/22/2026 No. 24-40756 conclude with interpretive guidance to assist district courts when presented with requests for equitable relief. A. i. In interpreting statutes, we start with the plain meaning of the text. United States v. Moore, 71 F.4th 392, 395 (5th Cir. 2023) (citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010)). 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: the use of “and”; the provision’s two infinitives and distinct postpositive modifying clauses; and the rule against superfluity. Begin with the provision’s use of the conjunction “and.” “And” is a “coordinating junction” that is employed to “link[] independent ideas.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 236 (2011). The Revised Fourth Edition of Black’s Law Dictionary defines “and” as: “A conjunction connecting words or phrases expressing the idea that the latter is to be added to or taken along with the first.” And, Black’s Law Dictionary (4th ed. rev. 1968).2 Here, “and” is most naturally understood to connect two “independent ideas.” Bruesewitz, 562 U.S. at 236. A court therefore has jurisdiction “to enjoin” or “to order production.” FEMA argues that if Congress intended for each clause of Section 552(a)(B)(4) to confer a distinct power, it would have used the disjunctive _____________________ 2 We “often look to dictionary definitions for help in defining a word’s ordinary meaning.” Cascabel Cattle Co., L.L.C. v. United States, 955 F.3d 445, 451 (5th Cir. 2020) (collecting cases). Congress enacted the current iteration of FOIA’s remedial provision in 1974. In turn, we use definitions from the era of that amendment. See Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014) (using dictionaries from the “era” of a statute’s enactment); accord Van Loon v. Dep’t of the Treasury, 122 F.4th 549, 563 (5th Cir. 2024). 11  Case: 24-40756 Document: 77 Page: 12 Date Filed: 10/22/2026 No. 24-40756 “or.” See also A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 116 (2012) (Scalia & Garner) (distinguishing “and” and “or”). But “the mere possibility of clearer phrasing cannot defeat the most natural reading of the statute.” Caraco Pharm. Lab’ys, Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 416 (2012). Moreover, “and” can be interpreted as disjunctive when the context so requires. See, e.g., Bruce v. First Fed. Sav. & Loan Ass’n of Conroe, Inc., 837 F.2d 712, 717 (5th Cir. 1988) (“But to read the word ‘and’ in the disjunctive is to give the word its clearly intended effect.”). Next, statutory syntax. Section 552(a)(4)(B) separates two infinitives, each with distinct postpositive modifiers using a distinct form of the verb “withhold” following the two infinitives. The familiar noscitur a sociis canon instructs that, in interpreting statutes, words are “known by the company [they] keep.” Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995); see also Scalia & Garner at 195 (“Associated words bear on one another’s meaning (noscitur a sociis).”). This canon helps “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words.” Gustafson, 513 U.S. at 575; see also ALDF, 935 F.3d at 870 n.12 (applying this principle to Section 552(a)(4)(B)). Courts “frequently look[] to Congress’ choice of verb tense to ascertain a statute’s temporal reach.” Carr v. United States, 560 U.S. 438, 448 (2010). The present participle “withholding” follows the first infinitive. See 5 U.S.C. § 552(a)(4)(B). This verb form usually denotes ongoing action. See D.L. Markham DDS, MSD, Inc. 401(K) Plan v. Variable Annuity Life Ins. Co., 88 F.4th 602, 610 (5th Cir. 2023) (defining present participle “providing” to mean “a person who is currently providing services”) (emphasis omitted); see also 1 U.S.C. § 1 (directing that present- tense verbs be read to “include the future as well as the present”). The enjoin-from-withholding clause permits courts to issue injunctive relief related to present and ongoing actions. By contrast, “withheld” is backward- 12  Case: 24-40756 Document: 77 Page: 13 Date Filed: 10/22/2026 No. 24-40756 looking, referring only to documents that the agency has but has not yet released. The relief afforded by the order-production clause is narrowly tailored to deal with those such documents. Were these three textual features not enough, the canon against superfluity also guides us. It would render the first clause entirely unnecessary if we adopted FEMA’s one-clause reading of the statute, permitting courts to enter relief only by ordering the production of documents that an agency has withheld. Although FEMA counters that reading the statute as providing for two forms of relief would render the second clause redundant because “the first phrase swallows the second”— that is, the power “to enjoin” would necessarily include the power to order production—the canon against surplusage encourages courts to read capacious words narrowly to avoid superfluity. See ALDF, 935 F.3d at 869. To do so, we can read the first clause as providing for broad equitable authority distinct from the narrow equitable power provided for in the second clause. See id. at 870; accord N.Y. Legal Assistance Grp. v. Bd. of Immigr. Appeals, 987 F.3d 207, 218 (2d Cir. 2021) (NYLAG) (“Here, [the rule against surplusage] suggests that the first clause is best read as providing a remedy distinct from that authorized by the second clause.”). Depending on the alleged violation, a court may find it necessary to issue equitable relief relying on both provisions of the statute. This reading “requires less grammatical torture of the statute.” Netsphere, Inc. v. Baron, 799 F.3d 327, 332 (5th Cir. 2015) (citation omitted).3 _____________________ 3 Our colleagues and other circuits have debated the value of the canon against surplusage here. Compare NYLAG, 987 F.3d at 218 n.19 (“The mutual arguments from superfluity here illustrate the point that the Supreme Court has made concerning the limited force of arguments from superfluity.”), with id. at 226 (Park, J., dissenting) (arguing that reading “requiring production to the complainant” to “specif[y] and compliment[]” the first clause “contains some redundancy, [but] gives effect to all parts of the provision”). 13  Case: 24-40756 Document: 77 Page: 14 Date Filed: 10/22/2026 No. 24-40756 ii. Further, this two-clause reading of Section 552(a)(4)(B) comports with related reading-room decisions from our sister circuits. In ALDF, the Ninth Circuit addressed animal rights organizations’ request that a sub- agency of the Department of Agriculture post reports, settlement agreements, administrative complaints, and other documents collected under the Animal Welfare Act online in accordance with Section 552(a)(2). See 935 F.3d at 863–65. The Ninth Circuit concluded that the organizations could seek injunctive relief in the form of publication after determining that Section 552(a)(4)(B) consisted of two distinct provisions: the first “to enjoin” clause (providing jurisdiction “to enjoin the agency from withholding agency records”); and the second “to order” clause (providing jurisdiction “to order the production of any agency records improperly withheld from the complainant”). See id. at 869–71 (quoting 5 U.S.C. § 552(a)(4)(B). If ordering the production of agency records were the sole available relief, then Section 552(a)(4)(B) would not need the enjoin-from- withholding clause because “the latter phrase would do all of the necessary work.” Id. at 870. The Ninth Circuit rejected the contention that reading “to enjoin” so expansively would “render[] superfluous” the “to order production clause.” Id. In NYLAG, the Second Circuit joined the Ninth Circuit in determining that Section 552(a)(4)(B) affords two types of relief. See 987 F.3d at 215–24. There, a legal services organization challenged the failure of the Board of Immigration Appeals to make available online its non- precedential opinions. Id. at 208–09. The district court had “read the provision as authorizing only a single form of relief (in effect, ‘to enjoin and to order’)—with the second verb simply defining and limiting the first.” Id. at 216. Examining the provision’s text, context, and amendments, as well as FOIA’s broader purpose, the Second Circuit concluded that 14  Case: 24-40756 Document: 77 Page: 15 Date Filed: 10/22/2026 No. 24-40756 Section 552(a)(4)(B) “grants district courts the authority to order injunctive relief to enforce § 552(a)(2), including an order requiring the agency to make records available for public inspection in an electronic reading room.” Id. at 224. The court recognized that the parties both had plausible readings of the statute. See id. at 217 (noting that “neither parties’ [sic] reading is ‘wholly without force’” (citation omitted)). But the Second Circuit was persuaded by the provision’s dual-pronged nature for a couple of reasons. First, it noted that “and” is “typically used for linking independent ideas, suggesting that Congress meant to authorize courts to exercise two independent powers.” Id. (citation modified). Second, it observed the statute’s use of two infinitives. See id. iii. Finally, the Supreme Court precedent FEMA cites is inapposite. The agency cites two cases in support of its position that the “withholding of documents” is a prerequisite for jurisdiction: Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980), and United States Department of Justice v. Tax Analysts, 492 U.S. 136 (1989). These cases do not stretch so far. In Kissinger, the Supreme Court addressed Section 552(a)(4)(B) in the context of a FOIA request for transcriptions of Secretary of State Henry Kissinger’s phone conversations. 445 U.S. at 139, 143–44. Addressing Section 552(a)(4)(B), the Court provided that “federal jurisdiction is dependent upon a showing that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’” Id. at 150. It specified, however, that it was not deciding “the full contours of a prohibited ‘withholding.’” Id. Rather, it determined that an agency had no obligation to retrieve a record sent to another government entity. See id. at 150–51 (“Congress did not mean that an agency improperly withholds a document which has been removed from the possession of the agency prior to the filing of the FOIA request.”). 15  Case: 24-40756 Document: 77 Page: 16 Date Filed: 10/22/2026 No. 24-40756 The Court did not examine agency obligations as to future documents, nor did it address whether the statute permitted plaintiffs to seek prospective relief. The Court’s statement that an agency’s withholding of agency records is an “indispensable prerequisite to liability in a [FOIA suit],” 445 U.S. at 155—relied on by FEMA—should be read in context. See Tax Analysts, 492 U.S. at 148–50 (emphasizing Kissinger’s narrow holding). In Tax Analysts, the Supreme Court built on Kissinger, quoting the same language about the three jurisdictional prerequisites. 492 U.S. at 142. The Court examined whether FOIA required the Department of Justice to make copies of district court decisions it receives in the course of litigating tax cases available to FOIA requesters. Id. at 138. The Court answered in the affirmative. Id. at 155. Here too, context matters. Although the Tax Analysts Court restated the Kissinger rule, its conclusions were quite narrow. It concluded that the district court decisions at issue constituted agency records. See id. at 146. It denied the government’s argument “that an agency has not ‘withheld’ a document under its control when, in denying an otherwise valid request, it directs the requester to a place outside of the agency where the document may be publicly available.” See id. at 150. And it analyzed what “improperly” meant within FOIA. See id. at 150–55. As LUPE argues, Tax Analysts “did not announce a strict past-tense-only ‘withheld’ rule.” These two cases “can be read to support the government’s position,” but they focus on “which among existing documents constitute ‘records’ for FOIA purposes,” not on “the propriety of injunctive relief.” Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Hum. Servs., 874 F.3d 287, 291 (D.C. Cir. 2017). Neither Kissinger nor Tax Analysts dictate that FOIA limits federal court jurisdiction as FEMA argues they do. For that reason, our sister circuits have read Section 552(a)(4)(B) to consist of two distinct clauses. 16  Case: 24-40756 Document: 77 Page: 17 Date Filed: 10/22/2026 No. 24-40756 B. Having determined that two distinct clauses constitute Section 552(a)(4)(B), we next assess whether the enjoin-from-withholding clause permits FOIA plaintiffs to obtain prospective relief. Once again, we agree with our sister circuits that it does. The verb enjoin is quite capacious, generally including both present and forward-facing relief. See Enjoin, Black’s Law Dictionary (4th ed. rev. 1968) (defining “enjoin” as “[t]o require; command; positively direct” or “[t]o require a person . . . to perform, or to abstain or desist from, some act”). As noted above, the verb is modified by the present participle “withholding,” 5 U.S.C. § 552(a)(4)(B), a verb form that implies a present and continuing action. See D.L. Markham DDS, 88 F.4th at 610. In Citizens for Responsibility and Ethics in Washington v. United States Department of Justice (CREW), the D.C. Circuit examined a plaintiff organization’s challenge to the Office of Legal Counsel’s alleged failure to post its opinions online, in which both retroactive and prospective relief were sought. 846 F.3d 1235, 1239 (D.C. Cir. 2017). Emphasizing FOIA’s broad language, the court had “little trouble concluding that a district court possesses authority” to issue an injunction under the statute that “would have prospective effect” and “impose an affirmative obligation to disclose.” CREW, 846 F.3d at 1241–2.4 Further, the Supreme Court has stated that “there is little to suggest” that Congress intended Section 552(a)(4)(B) “to limit the inherent powers of an equity court” in FOIA cases. Renegotiation Bd. v. Bannercraft Clothing _____________________ 4 Only the Fourth Circuit—in a narrow, unpublished decision—has concluded FOIA confers no prospective-relief authority. See Humane Soc’y of the U.S. v. U.S. Fish & Wildlife Serv., 838 F. App’x 721, 731–32 (4th Cir. 2020) (per curiam). 17  Case: 24-40756 Document: 77 Page: 18 Date Filed: 10/22/2026 No. 24-40756 Co., 415 U.S. 1, 20 (1974); see also Payne Enters., Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (“FOIA imposes no limits on courts’ equitable powers in enforcing its terms.”); Lewis v. Reagan, 660 F.2d 124, 128 (5th Cir. Oct. 1981) (agreeing with most courts that have discussed the question of whether FOIA precludes courts from “exercising their traditional equitable powers”). The scope of a court’s equitable authority, once established, “is broad, for breadth and flexibility are inherent in equitable remedies.” Brown v. Plata, 563 U.S. 493, 538 (2011) (citation omitted). That is especially so where, as in FOIA, the public interest is involved. In such circumstances, a court’s “equitable powers assume an even broader and more flexible character than when only a private controversy is at stake.” Kansas v. Nebraska, 574 U.S. 445, 456 (2015) (quoting Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)); see also Virginian Ry. Co. v. Railway Employees, 300 U.S. 515, 552 (1937) (“Courts of equity may, and frequently do, go much farther. . . to give . . . relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.”). None of FEMA’s counter arguments convince us that we should read the enjoin-from-withholding clause differently. First, FEMA, relying again on Tax Analysts, asserts that the term “agency records” has a specific meaning that applies only to documents in agency control at the time of a FOIA request. As discussed above, however, Tax Analysts addressed the narrow question of whether the Department of Justice was required to produce district court decisions it obtained through its tax litigation. 492 U.S. at 138. It pronounced two requirements for requested materials to qualify as “agency records”: (1) “an agency must ‘either create or obtain’ the requested materials ‘as a prerequisite’”; and (2) “the agency must be in control of the requested material at the time the FOIA request is made.” Id. at 144–45. Read in context, Tax Analysts provides that Section 552(a)(4)(B) 18  Case: 24-40756 Document: 77 Page: 19 Date Filed: 10/22/2026 No. 24-40756 prohibits courts from ordering agencies to draft materials or seek materials from outside the agency. See CREW, 846 F.3d at 1241–42 (noting that the court “ha[d] little trouble concluding” that it could order an injunction that “would apply to opinions not yet written”). The same context limitation colors our Nolen v. Rumsfeld case, which FEMA also cites, in which we stated that FOIA “compels disclosure only of existing records.” 535 F.2d 890, 891 (5th Cir. 1976). Neither case precludes us from determining the statute affords prospective relief where it is so warranted. Second, FEMA argues that FOIA proscribes prospective injunctions because they inherently defy the statute’s administrative exhaustion requirements, which we have understood to be jurisdictional. See 5 U.S.C. § 552(a)(6)(c); Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir. 1979) (per curiam) (“FOIA should b