Perioperative Services And Logistics, LLC v. DVA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 2022 Decided January 17, 2023

No. 21-5223

PERIOPERATIVE SERVICES AND LOGISTICS, LLC,

APPELLANT

v.

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cv-00095)

Edward J. Tolchin argued the cause and filed the briefs for

appellant.

Douglas C. Dreier, Assistant U.S. Attorney, argued the

cause for appellee. On the brief were R. Craig Lawrence, Jane

M. Lyons, and Michael A. Tilghman II, Assistant U.S.

Attorneys.

Before: KATSAS and PAN, Circuit Judges, and TATEL,

Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge TATEL.

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TATEL, Senior Circuit Judge: This Freedom of

Information Act case presents a recurring problem: what is a

district court to do when the government claims that a withheld

record is exempt from disclosure but the basis for that

exemption cannot be gleaned from public affidavits or the

withheld record itself? Our court has held that in such

circumstances the government may file an ex parte declaration,

which the court can read but the FOIA requester cannot, to

explain the basis for the exemption. In this case, the district

court accepted an ex parte declaration and concluded that the

requested record was exempt. For the reasons set forth below,

we affirm.

I.

Perioperative Services and Logistics, LLC, sells medical

devices to the Department of Veterans Affairs (VA). After

someone emailed the VA accusing Perioperative of selling

counterfeit implants, the VA’s National Center for Patient

Safety posted an internal recall, requiring agency facilities to

sequester Perioperative products. Forty days later, after an

investigation yielded no support for the accusation, the VA

lifted the recall.

Seeking to unmask the complainant, Perioperative filed a

FOIA request for the complaint. The VA denied the request,

relying on Exemption 6, which shields “personnel and medical

files and similar files the disclosure of which would constitute

a clearly unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(6). Perioperative filed suit in district court, and the

VA moved for summary judgment. In support, it filed an ex

parte declaration by VA employee Brian P. Tierney, who

explained why the VA believes that producing the document

would invade the complainant’s privacy. But, Tierney went on,

the VA faced a catch-22: publicly filing the Tierney declaration

would itself reveal information that would unmask the

3

complainant. The district court agreed, reviewed the Tierney

declaration in camera, and granted summary judgment to the

VA. Perioperative Services & Logistics, LLC v. Department of

Veterans Affairs, No. 20-cv-00095 (ABJ), 2021 WL 4476769,

at *1 (D.D.C. Sept. 30, 2021).

On appeal, Perioperative offers a dozen arguments that

boil down to just two: that the district court improperly relied

on the Tierney declaration and that the VA failed to carry its

burden to demonstrate that the complaint is exempt from

disclosure under Exemption 6.

II.

In accepting the Tierney declaration, the district court

relied on our court’s decision in Arieff v. Department of the

Navy, 712 F.2d 1462 (D.C. Cir. 1983), where we held that “the

receipt of in camera affidavits is . . . , when necessary, part of

a trial judge’s procedural arsenal.” Id. at 1469 (internal

quotation marks and citation omitted). In Arieff, a journalist

sought to uncover lists of prescription drugs supplied to

Congress’s Office of Attending Physician. Id. at 1464–65.

The government invoked Exemption 6, arguing that

sharing these drug inventories would be “tantamount to

disclosing . . . medical diagnos[e]s” of certain members of

Congress (or others treated by the Office of Attending

Physician). Id. at 1465. In support, the government offered an

ex parte affidavit that explained how specific drugs on the list

were linked with specific diagnoses. Id. We remanded for the

district court to consider whether the inventories should be

redacted, and, crucially for present purposes, ruled that the

district court could rely on the ex parte affidavit. Id. at 1469.

Acknowledging our discomfort with ex parte affidavits,

we explained that FOIA cases as a class present an unusual

dilemma: “[the government] knows the contents of the

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withheld records while the [plaintiff] does not; and the courts

have been charged with the responsibility of deciding the

dispute without altering that unequal condition, since that

would involve disclosing the very material sought to be kept

secret.” Id. at 1471. Given this, “[t]he [judicial] task” in a FOIA

case “can often not be performed by proceeding in the

traditional fashion.” Id. Therefore, we held, a district court may

receive an ex parte affidavit if and only if “(1) the validity of

the government’s assertion of exemption cannot be evaluated

without information beyond that contained in the public

affidavits and in the records themselves, and (2) public

disclosure of that information would compromise the secrecy

asserted.” Id.

These criteria were met in Arieff. Because the only way for

the government to demonstrate why a given drug was uniquely

linked to a specific disease was through the submission of

evidence that “would of necessity disclose the name of the drug

itself,” the district court properly allowed the government to

file its expert’s affidavit ex parte. Id. Of course, that meant that

the journalist’s expert had no idea which drugs were on the list,

so he resorted to “cit[ing] examples of drugs which, although

widely prescribed for particular medical conditions and often

associated with those conditions, are also used in the treatment

of other [conditions].” Id. at 1465. Ex parte presentation thus

denied the journalist’s expert the opportunity to join issue with

the government’s expert. Even so, we approved the district

court’s reliance on the ex parte submission because that was

the only way the court could evaluate the government’s

invocation of Exemption 6 without jeopardizing the very

privacy interests the government sought to protect.

More recently, we applied Arieff in Montgomery v.

Internal Revenue Service, 40 F.4th 702 (D.C. Cir. 2022), where

FOIA plaintiffs sought to obtain IRS records regarding

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potential whistleblowers. Denying the request, the IRS

explained that whether any whistleblowers even existed was a

fact protected from disclosure by FOIA Exemption 7(D). See 5

U.S.C. § 552(b)(7)(D) (exempting from FOIA’s reach “records

or information compiled for law enforcement purposes . . .

[that] could reasonably be expected to disclose the identity of

a confidential source”). Although the district court agreed, it

held that the government must still prove either that no

responsive records existed (e.g., because there were no

whistleblowers) or that all responsive records involved

whistleblowers who had been assured confidentiality. Of

course, the government had no way to reveal which of those

two things was true without also revealing whether a

whistleblower existed, so the district court authorized the filing

of in camera declarations, and we affirmed. Quoting Arieff, we

explained that “[t]his Court has previously given a test for

‘when an affidavit disclosing information assertedly exempt

from production under the FOIA is proffered,’” and “[t]he

district court properly applied this test.” Montgomery, 40 F.4th

at 713 (quoting Arieff, 712 F.2d at 1470).

In this case, the district court likewise applied Arieff. “This

is one of the rare cases,” the district court explained, “where

the ex parte submission, with its detailed description of the

nature of the withheld document and the reasons underlying the

exemption, was necessary to preserve the privacy of the third

party involved.” Perioperative, 2021 WL 4476769, at *6.

Perioperative argues that instead of relying on Arieff, the

district court should have applied the six-factor test first

articulated in United States v. Hubbard, 650 F.2d 293 (D.C.

Cir. 1980). See Cable News Network v. FBI (CNN), 984 F.3d

114, 118 (D.C. Cir. 2021) (listing the six Hubbard factors). The

“Hubbard test” is our “lodestar for evaluating motions to seal

or unseal judicial records.” Leopold v. United States, 964 F.3d

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1121, 1127 (D.C. Cir. 2020) (internal quotation marks and

citation omitted). Invoking Hubbard, Perioperative argues that

the “VA failed to establish adequately the basis for filing the

Tierney [d]eclaration under seal, and a fortiori failed to show

why it needed to be filed ex parte in its entirety.” Appellant’s

Br. 24.

Perioperative is mistaken. The tests announced in Arieff

and Hubbard govern two distinct questions. Arieff addresses

whether a district court may rely on an ex parte declaration in

a FOIA case. Hubbard addresses whether a district court must

fully or partially unseal a judicial record to vindicate “this

country’s common law tradition of public access to records of

a judicial proceeding.” Hubbard, 650 F.2d at 314. In

Montgomery, the FOIA plaintiffs challenged “the district

court’s use of in camera declarations,” and we applied Arieff.

40 F.4th at 713. In CNN, the plaintiff sought to unseal a

declaration in a FOIA case, and we applied Hubbard. See CNN,

984 F.3d at 118–19. Here, Perioperative argues that the district

court improperly received and relied on an ex parte declaration.

This is an Arieff issue, not a Hubbard issue. When the

government’s only recourse to vindicate an interest protected

by a FOIA exemption is to file an ex parte declaration, and the

government establishes that specific need under Arieff, it need

not simultaneously justify nondisclosure under the more

general balancing test required by Hubbard.

Perioperative—or indeed any member of the public—

could move in the future to unseal the Tierney declaration

pursuant to the common-law right of access to judicial records.

At that point, a Hubbard inquiry might be appropriate. We say

“might” because it is unclear to us whether the government

could ever establish a specific need to file an ex parte

declaration under Arieff, yet be unable to prevent its disclosure

under Hubbard, at least absent some intervening change in

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circumstances. Moreover, when the government’s only

recourse to vindicate an interest protected by a FOIA

exemption is to file an ex parte declaration, FOIA might

preempt any conflicting common law right to access that

declaration. CNN, 984 F.3d at 117 n.3 (declining to decide

whether FOIA “preempt[s] the common law when a document

is filed ex parte and in camera in FOIA litigation to persuade

the Court not to release FOIA materials”). But because these

issues are unbriefed, we leave them for another day.

Perioperative insists that the district court’s application of

Arieff “defies all sense of fairness.” Appellant’s Reply Br. 2.

Given that the district court applied the proper test, we evaluate

“for abuse of discretion” its “decision to review evidence ex

parte.” Labow v. DOJ, 831 F.3d 523, 533 (D.C. Cir. 2016).

As Perioperative points out, “‘party access’” to evidence

“‘is a hallmark of our adversary system’” that “‘serves to

preserve both the appearance and the reality of fairness.’”

Appellant’s Br. 18 (quoting Abourezk v. Reagan, 785 F.2d

1043, 1060–61 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987)).

Even in FOIA cases, we “have been vigilant to confine to a

narrow path submissions not in accord with our general mode

of open proceedings.” Abourezk, 785 F.2d at 1061. That is why

Arieff makes clear that a district court may rely on an ex parte

declaration in a FOIA case only when the government’s

asserted exemption cannot be evaluated through “public

affidavits” or “the records themselves.” 712 F.2d at 1471. To

be sure, “when a district court uses an in camera affidavit, it

must both make its reasons for doing so clear and make as

much as possible of the in camera submission available to the

opposing party.” Armstrong v. Executive Office of the

President, 97 F.3d 575, 580 (D.C. Cir. 1996) (citing Lykins v.

DOJ, 725 F.2d 1455, 1465 (D.C. Cir. 1984)). Although the

district court here failed to follow that procedure, Perioperative

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has failed to raise that issue on appeal. In its opening brief,

Perioperative cites neither Armstrong nor Lykins, and it

addresses redaction in only “the most skeletal way.” See

Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005)

(mentioning an argument “in the most skeletal way” will not

prevent forfeiture, as it “leav[es] the court to do counsel’s

work, create the ossature for the argument, and put flesh on its

bones”) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990)).

Although Perioperative’s briefs are rife with accusations

of procedures that “made the . . . Star Chamber look tame,”

Appellant’s Reply Br. 2, none of its arguments persuades us

that the district court abused its discretion. That said, we

understand Perioperative’s frustration: the district court relied

on a declaration that the company cannot see, let alone rebut.

But that dilemma is inherent in those FOIA cases where, as

here, an ex parte declaration is the only way to “decid[e] the

dispute without . . . disclosing the very material sought to be

kept secret.” Arieff, 712 F.2d at 1471.

III.

We turn, then, to Perioperative’s challenge to the district

court’s conclusion that the requested document—the

complaint—is covered by Exemption 6. “We review de novo a

district court’s decision to grant summary judgment.” Center

for Auto Safety v. National Highway Traffic Safety

Administration, 452 F.3d 798, 805 (D.C. Cir. 2006) (internal

quotation marks and citation omitted). “In the FOIA context,”

de novo review “requires that we ascertain whether the agency

has sustained its burden of demonstrating that the documents

requested are . . . exempt from disclosure under the FOIA.”

ACLU v. DOJ, 750 F.3d 927, 931 (D.C. Cir. 2014) (alteration

in original) (internal quotation marks and citation omitted).

Where, as here, the government relies on an ex parte

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submission, we review it with extra care, recognizing that the

FOIA plaintiff has had no opportunity to challenge or rebut the

government’s evidence.

To carry its burden under Exemption 6, the VA must show

three things. First, it must demonstrate that the withheld files

are “personnel [or] medical files [or] similar files.” 5 U.S.C.

§ 552(b)(6). Perioperative acknowledges that the complaint

qualifies as a similar file, as courts construe that term.

Second, the VA must show that disclosure would

“compromise a substantial, as opposed to a de minimis, privacy

interest.” National Association of Home Builders v. Norton,

309 F.3d 26, 33 (D.C. Cir. 2002) (internal quotation marks and

citation omitted). Courts have recognized a substantial privacy

interest in avoiding “unwanted contact following a FOIA

disclosure.” ACLU v. DOJ, 655 F.3d 1, 11 (D.C. Cir. 2011)

(collecting cases); see Department of Defense v. Federal Labor

Relations Authority, 510 U.S. 487, 502 (1994) (upholding

agency’s refusal to disclose employees’ home addresses). Of

particular relevance to this case, courts have recognized that

those who file complaints with the government “have

cognizable personal privacy interests in maintaining their

anonymity.” Prudential Locations LLC v. Department of

Housing & Urban Development, 739 F.3d 424, 434 (9th Cir.

2013) (per curiam); see Horowitz v. Peace Corps, 428 F.3d

271, 279 (D.C. Cir. 2005) (sexual assault complaint); Lakin

Law Firm, P.C. v. Federal Trade Commission, 352 F.3d 1122,

1122, 1124 (7th Cir. 2003) (consumer complaint to FTC).

Here, by the same token, the person who filed the

complaint against Perioperative has a substantial privacy

interest in maintaining in confidence the fact that he or she

accused the company of wrongdoing and in avoiding unwanted

contact by it. Perioperative effectively concedes as much in its

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opening brief. Appellant’s Br. 25 (“Certainly, names and

addresses can be personal, and with respect to those matters,

the balancing of public versus private interests would be

required.”); see also Oral Arg. Rec. 7:47–7:48 (calling the

privacy interest “somewhat limited” but not arguing that it is

de minimis).

Third, the VA must show that this privacy interest

outweighs “the public interest in the release of the records”

such that “disclosure would [cause] a clearly unwarranted

invasion of personal privacy.” National Association of Home

Builders, 309 F.3d at 33 (internal quotation marks and citation

omitted). “[T]he only relevant public interest in disclosure to

be weighed in this balance is the extent to which disclosure

would serve the core purpose of the FOIA, which is

contributing significantly to public understanding of the

operations or activities of the government.” American

Immigration Lawyers Association v. Executive Office for

Immigration Review, 830 F.3d 667, 674 (D.C. Cir. 2016)

(quoting Department of Defense, 510 U.S. at 495).

Perioperative argues that disclosing the complaint would

contribute to an understanding of the operations of the VA

because it would show “how a competitor can abuse the VA’s

investigatory processes by filing a false complaint for the

purposes of causing harm to a competitor and then how the VA

could suspend [the accused company’s] ability to do business

with the VA before it investigated the complaint.” Appellant’s

Br. 13. Knowing how the VA handles complaints from

competitors certainly qualifies as a public interest, but

Perioperative offers nothing but speculation to suggest that a

competitor filed the complaint against it. Indeed, as the VA

points out, a publicly filed declaration states that “the source of

the third-party complaint was an individual at an ‘unaffiliated

implant center.’” Appellee’s Br. 23 (quoting Baxter Decl., Joint

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Appendix 37). Given this, together with other material facts—

on which we cannot here elaborate—contained in the Tierney

declaration, we believe that the complainant’s substantial

privacy interest outweighs any public interest in disclosure.

Accordingly, the VA has demonstrated that the complaint is

exempt from disclosure under FOIA Exemption 6.

Perioperative next argues that the “VA [has] fail[ed] to

establish that the responsive records are not reasonably

segregable.” Appellant’s Br. 26. When an agency demonstrates

that a record is exempt, as the VA has done, it is “entitled to a

presumption that [it] complied with the obligation to disclose

reasonably segregable material.” Sussman v. United States

Marshals Service, 494 F.3d 1106, 1117 (D.C. Cir. 2007).

Because FOIA requesters lack access to the withheld records,

they will often be unable to “rebut[] this presumption.” See id.

According to Perioperative, “it is simply impossible that

every word and punctuation mark would disclose the identity

of someone!” Appellant’s Br. 26. But this misapprehends the

VA’s FOIA obligations. It need not disclose a redacted version

of the complaint if the unredacted markings would “have

minimal or no information content.” Mead Data Center, Inc. v.

Department of the Air Force, 566 F.2d 242, 261 n.55 (D.C. Cir.

1977). The Tierney declaration says that that is exactly what

would happen here.

Finally, explaining that it needs to see the complaint

because it “want[s] to sue the[] [complainant] . . . for

defamation,” Perioperative argues that “the government has no

right to protect someone from a libel suit.” Oral Arg. Rec.

11:26–50. But Perioperative’s understandable desire to unmask

the complainant has no bearing on the outcome of its FOIA

case. The only question is whether the VA has carried its

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burden to demonstrate that the complaint is exempt under

Exemption 6. It has.

IV.

For the foregoing reasons, we affirm.

So ordered.