Peralta v. U.S. Attorney's Office

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 1998 Decided February 24, 1998

No. 96-5068

Rolando Peralta,

Appellant

v.

U.S. Attorney's Office, Central District of California,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 94cv00760)

Maja D. Hazell, student counsel, argued the cause as

amicus curiae, with whom Steven H. Goldblatt, appointed by

the court, Catherine E. Lhamon, and Laura E. Mascheroni,

student counsel, were on the briefs.

Rolando Peralta, appearing pro se, was on the brief for

appellant.

Cynthia A. Schnedar, Assistant United States Attorney,

argued the cause for appellee, with whom Mary Lou Leary,

United States Attorney at the time the brief was filed, and R.

Craig Lawrence, Assistant United States Attorney, were on

the brief. Darya Geetter, Assistant United States Attorney,

entered an appearance.

Before: Silberman, Williams and Sentelle, Circuit

Judges.

Opinion for the court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Seeking records relating to his

criminal conviction, Rolando Peralta filed a pro se complaint

under the Freedom of Information Act, 5 U.S.C. s 552

("FOIA"), and named a local United States Attorney's Office

as the sole defendant. The Executive Office for United

States Attorneys ("Executive Office"), the entity responsible

for responding to FOIA requests directed to local United

States Attorneys' Offices, participated in the case on behalf of

the named defendant, releasing some documents to Peralta

and referring the processing of others to the Federal Bureau

of Investigation. The district court ordered the Executive

Office dismissed from the case, concluding that it had com-

plied with its obligations under the FOIA. The district court

also granted a motion for a stay that the defendant had filed

on behalf of the FBI, granting the FBI additional time to

process the documents the Executive Office had referred to

it. The district court took these actions even though the

Executive Office and the FBI were not named in the com-

plaint as parties and had not been joined as parties to the

case.

Peralta appealed from the district court's dismissal of the

Executive Office. Peralta asserts that we have jurisdiction

over the district court's order because it is "final" and appeal-

able under 28 U.S.C. s 1291. The government, on the other

hand, challenges our jurisdiction to hear this appeal. It

urges us to treat the Department of Justice--not the local

United States Attorney's Office sued by Peralta, the Execu-

tive Office or the FBI--as the sole defendant before the

district court. Under this approach, the district court's order

left loose ends relating to (would-be) sole defendant Depart-

ment of Justice, which would mean that the order could not

be "final" under 28 U.S.C. s 1291. This argument would

have considerably greater force if the government had suc-

cessfully moved below to substitute the Department of Justice

as defendant. But it did not. Rejecting the government's

attempt to rewrite the history of this case, we conclude that

the district court's order was final because it dismissed the

Executive Office--an entity all parties treated as if it stood in

the shoes of the sole named defendant--from the case. Ac-

cordingly, we assert jurisdiction over the district court's

order, vacate that order, and remand the case to the district

court.

I. Background

In order to make sense of this case, we note preliminarily

that the parties and the district court lost track of the

identity of the "defendant" in this litigation. Rolando Peralta

named one defendant in his FOIA complaint: the United

States Attorney's Office for the Central District of California

("the Central District"). Before the district court, the gov-

ernment's filings occasionally referred to the Central District

as the defendant, but they also referred to the Executive

Office and the FBI as defendants, even though those entities

were never formally added as parties to the case. In re-

sponse to the government's motions, the district court dis-

missed the Executive Office from the case and stayed the

case on behalf of the FBI. The district court took no formal

action with respect to the Central District. To further com-

plicate matters, the government argues on appeal that still

another entity, the United States Department of Justice, was

the sole defendant before the district court. We provide this

abbreviated overview as a prelude to the following confusing

tale.

Rolando Peralta, an inmate at the Federal Correctional

Institution in Terminal Island, California, sought records

relating to his criminal conviction pursuant to the Freedom of

Information Act. Peralta initially requested the documents

by writing to Assistant United States Attorney Carol Gilliam 1

of the Central District of California. When he received no

response to his request within the statutory ten-day period,

Peralta filed a FOIA lawsuit against the Central District,

asserting that the Central District possessed the documents

he wanted. See Complaint at p 4. Peralta's complaint fur-

ther alleged that "Defendant, U.S. Attorney's Office for the

Central District of California, is an agency in the U.S. De-

partment of Justice, a department within the Executive

Branch of the United Stated [sic] Government." Id.

The "defendant" moved the district court to dismiss Peral-

ta's case, claiming it had never received Peralta's FOIA

request. Litigating that motion, the movant referred to itself

as "Defendant" or "Defendant in the above-captioned case."

The case caption in some of its filings identified the "defen-

dant" as "U.S. Attorney's Office"; in other filings, the caption

identified the "defendant" as "United States Attorney's Of-

fice, Central District of California." After that motion was

briefed, the "defendant" discovered that AUSA Gilliam had

received Peralta's request, but apparently did not understand

its significance, and had subsequently lost it. In light of this

development, the district court denied the motion to dismiss

and granted the "defendant's" motion for a ninety-day stay to

"permit the defendant to submit the relevant documents to

the Executive Office of United States Attorneys for process-

ing." The Executive Office is the entity responsible for

fielding FOIA requests sent to individual U.S. Attorney's

Offices throughout the country. See U.S. Attys. Man.

1-9.130.

After the ninety-day stay had expired, the "defendant"--

still calling itself simply the "[d]efendant in the above-

captioned case"--informed the district court that it had fur-

__________

1 The defendant filed one declaration with the district court

identifying this person as "Carol Gilliam," see Supplemental Decla-

ration of John F. Boseker p 1, and another identifying her as "Carol

Gillam." See Declaration of Claire De Longe p 1. Not knowing

which name is correct, we shall refer to her as Carol Gilliam here.

nished Peralta with 414 pages of responsive documents in

their entirety and 28 pages in part, and that it had withheld

396 pages in their entirety pursuant to FOIA exemptions. It

also noted that some 290 pages "were referred to the Federal

Bureau of Investigation (FBI) for review and direct response

to plaintiff." Id. We shall refer to these documents as the

"FBI Documents."

The "defendant" subsequently filed a motion captioned

"The Executive Office for U.S. Attorneys' Motion to Dismiss

or, in the Alternative, For Summary Judgment." The motion

asked the district court to dismiss the Executive Office from

the case on the ground that it had fully complied with its

FOIA obligations. On the same date, the "defendant" filed

another motion captioned "Defendant's Motion for a Stay on

Behalf of the Federal Bureau of Investigation." That motion

said that due to a backlog in processing FOIA requests,

"plaintiff's request [for the FBI Documents] will not reach its

turn in the queue until March, 2002." Accordingly, the

movant requested the district court to enter a stay on behalf

of the FBI to give the FBI time to process Peralta's request

for the FBI Documents.

The district court granted both motions. Agreeing that the

Executive Office had lived up to its FOIA obligations, the

district court granted "defendant's motion for summary judg-

ment" and dismissed the case "as to Defendant Executive

Office of the U.S. Attorneys." In its Memorandum Order,

the district court assumed that the Executive Office need not

respond to Peralta's request for the FBI Documents, stating

that "approximately 200 [sic] pages of documents ... [were]

referred ... to the FBI for processing and direct response to

plaintiff."

On the same day, and in a separate order, the district court

granted the "defendant's" motion for a stay. In its order, the

court said it was ruling on "the motion of defendant Federal

Bureau of Investigation for a stay in this case until March

2002," and ordered the case to be stayed until February 1,

1998 (emphasis added). By doing so, the district court pur-

ported to elevate the FBI to the status of a party to the case,

even though (1) the FBI was not named in the original case

caption; (2) the FBI had never been served with a summons,

complaint, or any other pleading; (3) Peralta never amended

his complaint to add the FBI as a party; (4) the FBI had not

been added as a party through joinder or intervention; (5)

the FBI had never filed a pleading on its own behalf; (6) the

district court docket did not show the FBI as a party to the

case; and (7) Peralta, opposing the motion for a stay, had

correctly reminded the district court that "there are no

proceedings before the courts [sic] against the F.B.I."

Peralta filed a timely notice of appeal from the district

court's order dismissing the Executive Office from the case.2

II. Discussion

Our jurisdiction to review judgments of the district court is

confined to "appeals from all final decisions," 28 U.S.C.

s 1291, and to interlocutory appeals meeting the criteria

stated in 28 U.S.C. s 1292. Put another way, we have no

power to hear an appeal from the district court unless the

district court's decision is "final" or one of the section 1292

exceptions applies. See Everett v. US Airways Group, Inc.,

No. 96-7158, 1998 WL 1799, at *1 (D.C. Cir. Jan. 6, 1998). A

district court's decision is "final" if it "ends the litigation on

the merits and leaves nothing for the court to do but execute

the judgment." Catlin v. United States, 324 U.S. 229, 233

(1945); see also Fed. R. Civ. P. 54(b).

Urging us to dismiss this case for want of appellate juris-

diction, the government argues that we should treat the

Department of Justice as having been the sole defendant

before the trial court. If we accept this point, we could not

appropriately treat the appealed-from order as a "final deci-

sion" pursuant to 28 U.S.C. s 1291 because that order, which

__________

2 A review of the file located in the district court clerk's office

reveals that after the district court dismissed the Executive Office

from the case, both the district court and the "defendant" have

proceeded as if the FBI is the sole defendant in the case, captioning

their recent orders and filings: Rolando Peralta v. Federal Bureau

of Investigation.

did not resolve the fate of the FBI Documents, did not end

the litigation on the merits.

First, the government argues that the DOJ must have been

the sole defendant below because the FOIA only applies to

the DOJ, not to DOJ components FBI and Executive Office.

Under the FOIA,

the term "agency" as defined in section 551(1) of this title

includes any executive department, military department,

Government corporation, Government controlled corpora-

tion, or other establishment in the executive branch of

the Government (including the Executive Office of the

President), or any independent regulatory agency.

5 U.S.C. s 552(f). The reference to "section 551(1) of this

title" is to the definitional section of the Administrative

Procedure Act, which states that " 'agency' means each au-

thority of the Government of the United States, whether or

not it is within or subject to review by another agency...."

In any event, because the government raised this argument

for the first time on appeal, we shall not consider it. See

District of Columbia v. Air Florida, Inc., 750 F.2d 1077,

1084-85 (D.C. Cir. 1984).

The government is free to reassert this argument on

remand if it desires. However, we suspect that the FBI is

subject to the FOIA in its own name. We have observed

previously that the FBI is "clearly ... covered" by the FOIA,

McGehee v. CIA, 697 F.2d 1095, 1108 (D.C. Cir. 1983). The

FOIA itself appears to contemplate that the FBI is subject to

its provisions. See 5 U.S.C. s 552(c)(3) (providing that the

FBI may treat certain classified information as not subject to

FOIA disclosure). And, the FBI has litigated numerous

FOIA cases in its own name before the Supreme Court, this

court, and other circuit courts, with the DOJ or one of its

components appearing as counsel. See, e.g., FBI v. Abram-

son, 456 U.S. 615 (1982) (Solicitor General's Office represent-

ing FBI); Williams v. FBI, 69 F.3d 1155 (D.C. Cir. 1995)

(U.S. Attorney's Office for the District of Columbia represent-

ing FBI and DOJ); Quinon v. FBI, 86 F.3d 1222 (D.C. Cir.

1996) (U.S. Attorney's Office for the District of Columbia

representing FBI); Ferguson v. FBI, 83 F.3d 41 (2nd Cir.

1996) (U.S. Attorney's Office for the Southern District of New

York representing FBI); Jones v. FBI, 41 F.3d 238 (6th Cir.

1994) (DOJ representing FBI); Schiffer v. FBI, 78 F.3d 1405

(9th Cir. 1996) (DOJ representing FBI and DOJ). Indeed, we

note that, despite the government's position that district

courts lack jurisdiction over the FBI as a named agency-

party in FOIA cases, the FBI is currently participating as a

litigant before the district court in this very case. See

footnote 2, above.

In addition to arguing that the district court had jurisdic-

tion over the DOJ alone, the government also asserts that the

DOJ was the de facto defendant before the district court.

Apparently a "de facto defendant" is a non-party which an

appellate court decides to treat as if it had been a party. The

government says that we recognized de facto party status in

Monarch Life Ins. Co. v. Elam, 918 F.2d 201, 203 (D.C. Cir.

1990). In that case, a named party, Elam, agreed to settle

her personal injury case in exchange for a $19,000 payment

from the defendant's insurance company. Citing an earlier

judgment against Elam, a different insurance company filed a

lawsuit against her, asserting its own interest in the settle-

ment fund. Elam's lawyer believed he was entitled to a cut of

that payment as a result of a contingent fee agreement with

Elam. The lawyer never filed a motion in his own name;

instead, he piggybacked his personal claim onto pleadings

filed on Elam's behalf. We observed in dicta that the lawyer

"might well be regarded as a de facto intervenor" before the

district court because he "was present in fact throughout

every stage of the proceedings below (though not as a named

party)" and because Elam herself lacked any "real substan-

tive interest" in the settlement fund. Id. at 203. However,

we found the question of the lawyer's "de facto intervenor"

status to be academic, because it had not been raised on

appeal. Id. In other words, we simply mentioned the con-

cept of de facto party status, without passing on its validity.

Accordingly, we reject the government's attempt to treat this

dicta as precedent for this circuit's recognition of that amor-

phous concept.

Although we do not recognize de facto party status today, it

is apparent that the DOJ has not established that it would

qualify as a de facto defendant in this case even if we thought

such a thing existed.3 The record does not demonstrate that

the DOJ behaved as a party in the district court. On July 19,

1995, the "defendant" filed with the district court:

.A motion entitled "The Executive Office for U.S. Attor-

neys' Motion to Dismiss or, in the alternative, for Sum-

mary Judgment." The case caption identifies the defen-

dant as "U.S. Attorney's Office."

.A "Memorandum in Support of Defendants' Motion for

Summary Judgment." The case caption identifies the

defendant as "U.S. Attorney's Office."

.Fourth Declaration of John Boseker. The case caption

identifies the defendant as "United States Attorney's

Office, Central District of California."

."Defendant's Motion for a Stay on Behalf of the Federal

Bureau of Investigation." In this motion, "defendants

request that this case be stayed on behalf of the FBI

until March, 2002, ... [at which time] the defendant

should be in a position to provide the Court with addi-

tional information on the time required for processing."

Looking at this single day's filings, one wonders which

governmental entity or entities were participating in the

litigation. The Central District? The Executive Office? The

FBI? Some combination of the above? The government

asks us to extract from this morass the principle that the

DOJ "actually participated in the proceedings below" as the

sole defendant. We see no basis in the record for doing so.

Although the record reveals that this somewhat schizophrenic

"defendant" may have believed that it was one or more of the

__________

3 The government argues in the alternative that we should treat

the FBI as a de facto defendant, but never explains why we should

do so. We reject this argument because it is insufficiently devel-

oped. See Fed. R. App. P. 28(a)(6); United States v. Marshall, No.

96-3053, 1998 WL 1798, at *8 (D.C. Cir. Jan. 6, 1998).

above entities, the "defendant" never identified itself as the

DOJ. Even more importantly, unlike the non-party lawyer in

Elam, the DOJ did nothing in its own name before the

district court, whether as a party or not. In light of these

key facts, the government's argument that we should treat

the DOJ as the sole "de facto" defendant amounts to nothing

more than wishful thinking.

When the district court dismissed the Executive Office

from the case, all of the parties (as well as the district court)

assumed that the Executive Office was the alter ego of the

named defendant, Central Division, and had litigated the case

on its behalf. We make the same assumption here. Because

the district court's order effected the dismissal of the only

defendant from the case, that order was a final decision

pursuant to 28 U.S.C. s 1291, and we may assert jurisdiction

over it. The fact that the district court concurrently entered

a stay on behalf of a non-party does not render that order any

less final.

Having concluded that we have jurisdiction over the district

court's judgment, we reverse it. Although the district court

order dismissed the only defendant party in this case, it did

not resolve all of the issues. The district court made no

finding that the requested FBI Documents were either sub-

ject to disclosure or exempt from disclosure under the FOIA;

rather, it apparently approved of the Executive Office's refer-

ral of these documents to non-party FBI for processing. We

find this to be reversible error and remand to the district

court.

On remand, the district court's first task is to impose order

on this chaotic record, and resolve who the defendant or

defendants are in this case. The district court must confront

another question on remand: was the Executive Office justi-

fied in referring the FBI Documents to the FBI for process-

ing? In other words, did this referral procedure result in the

improper "withholding" of the FBI Documents? See 5 U.S.C.

s 552(a)(4)(B). To determine if it did, a reviewing court must

ask if the "net effect [of the referral procedure] is significant-

ly to impair the requester's ability to obtain the records or

significantly to increase the amount of time he must wait to

obtain them." McGehee, 697 F.2d at 1110. Such a "with-

holding" will be considered "improper" unless the agency can

offer a reasonable explanation for its procedure. Id. In

McGehee, we emphasized that there is no "bright line" test

for evaluating a given referral procedure, but we outlined a

model procedure to assist courts in doing so. Id. at 1111.

Under that framework, a court considers whether the origi-

nating agency has the "intent to control" the contested rec-

ords, and whether the referral is "prompt and public." Id. at

1111-12; see also Paisley v. CIA, 712 F.2d 686, 691-92 (D.C.

Cir. 1983).

Neither party cited Paisley or McGehee to the district

court, and the district court mentioned neither case in its

order approving of the referral of the FBI Documents to the

FBI for processing. Nor did the district court make any

findings as to whether the referral procedure used in this

case was appropriate. On remand, the district court must

evaluate the referral procedure in light of these cases,4 its

own resolution of which entity or entities are proper agency

defendants in this case, and a DOJ regulation (promulgated

after we decided Paisley and McGehee) providing for the

referral of records to originating components or agencies

under certain circumstances.5 See 28 C.F.R. s 16.4(d).

III. Conclusion

Federal Rule of Civil Procedure 10(a) provides that "the

names of all the parties" must appear in complaints filed in

federal court. The Federal Rules also provide formal means

of adding parties to a federal lawsuit that were not named in

the complaint. See Fed. R. Civ. P. 19(a); 20(a); 25(c). At

__________

4 The district court may consider Peralta's argument, raised for

the first time before us in his reply brief, that our model procedure

has been undercut by United States Dep't of Justice v. Tax Ana-

lysts, 492 U.S. 136, 145 (1989).

5 The district court may consider Peralta's argument, raised for

the first time on appeal, that this regulation is invalid because it

conflicts with Paisley and McGehee.

the government's request, the district court dismissed the

case against an entity that all parties treated as the alter ego

of the original sole defendant. Also at the government's

request, the district court stayed the case on behalf of

another entity that was not named in Peralta's complaint and

was not added to the case through formal means. These

actions led to the tangled record we have before us, to our

appointment of Georgetown's able Appellate Litigation Pro-

gram as amicus to help sort out the confusion, and to our own

efforts to make sense of the jurisdictional issues raised by

this case. With some regret, we note that all of these things

could have been avoided if the government and the district

court had paid attention to the elemental issue of who the

parties were in this litigation.

We vacate the judgment of the district court and remand

for further proceedings consistent with this opinion.