Petition — Cohen v. Smith

Supreme Court brief1983

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83-532 FILE

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1983

ROBERT CARL COHEN AND HELENE

KONIDARD COHEN, PETITIONERS

WILLIAM FRENCH SMITH IN HISCAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

ET AL., RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAWRENCE TEETER

Attorney at Law

3701 Wilshire Blvd.

Seventh Floor

Los Angeles, CA 90010

(213) 387-4512

Attorney for Petitioners

(I)

QUESTIONS PRESENTED

1. In a case arising under the Freedom of Informa-

tion Act’s law enforcement records exemption, 5 U.S.C.

section 552(b)(7), is the government entitled to summary

judgment if plaintiffs have controverted agency affiant

claims of law enforcement purpose with evidence

demonstrating that the records in question were actually

compiled for purposes related to a politically motivated

inquiry into the requesting parties’ constitutionally pro-

tected activities?

2. Is the government entitled to rely upon Freedom

of Information Act exemption (b)(7)(D) despite the

absence of any indication that the confidential source

in question is currently alive?

3. Does Freedom of Information Act exemption (b)(6),

which applies to ‘‘personnel and medical files and similar

files the disclosure of which would constitute a clearly

unwarranted invasion of personal privay[,]’’ apply to

C.I.A. and State Department files containing informa-

tion about the philosophies, associations, political beliefs

and reported statutory or administrative violations of

third parties?

4. Were affidavits presented by the government suf-

ficient to justify summary judgment in its favor of

claims predicated upon Freedom of Information Act ex-

emption (b)(1) given (a) the agencies’ reliance upon con-

clusory and boilerplate claims of classifiability and (b)

the district court’s refusal to conduct an in camera ex-

amination of the documents’ contents?

5. Did the district court abuse its discretion by declin-

ing to permit plaintiffs through new counsel to rescind

an unauthorized stipulation into which their former

lawyer had entered dismissing all named federal agen-

cy directors as individually liable defendants in a

damages claim given the fact that this unauthorized

(11)

Stipulation created the basis for governmenta!

arguments accepted by the court that the post stipula-

tion damages claim was barred by sovereign immunity,

thus rendering the stipulation functionally equiv alent

to an untra vires settlement of plaintiffs’ damages claim?

6. Did the district court abuse its discretion by de-

nving plaintiffs’ motion for leave to file an amended com-

piaint given the absence of any prejudice claims trom

defendants and given plaintiffs’ inability to even state

a basis for recovery of damages without such

amendment?

7. Are clients bound by their former counsel's failure

to conduct discovery if that failure is not even discovered

by the plaintiff litigants until subsequent to former

counsels discharge and the court's discovery cut-off

cate? Did the district court abuse its discretion by de-

nying a motion filed by plaintiffs through new counsel

for leave to reopen discovery under such circumstances?

The parties to this litigation are as follows: eno are listed in

the petition’s caption as Petitioners. Respondent William Frenc

Smi at who is named in the Petition. entered the case as a deten-

dant dy succession as Attorney General. The complaint listed the

follow: ing defendants. who were sued both individually and in their

respective representative capacities: GRIFFIN BELL. in his cepaci-

ty as Attorney General of the United States: BENJAMIN F.

BAILAR, in his capacity as The Postraaster General: HAROLD

BROWN, in “apie rad v as Secretary of Defense: CYRUS VANCE,

in his capacity as Secretary of Stute: W. MICHAEL BLUMEN.

THAL., in his macy as Day of the Treasury: CLIFFORD

ALEXANDER, in his capacity as Secretary of the Army, ADM.

STANFIELD TURNER, in his capacity as Director of the Central

Intelligence Agency; CLARENCE M. KELLY. in his capacity as

Director of the Federal Bureau of investigation: H. STEWART

KNIGHT. in his capacity as Director of the Secret Service; LT.

GEN. LEW ALLEN, in his capacity as Director of the National

Security Agency: JEROME KURTZ, in his capacity as Director

of the Internal Revenue Service. A number of other originally nam-

(III)

ed defendants were not parties to proceedings before the Court of

Appeals. The only additional detendant before the Court of Appeals

was EDWARD W. CARTER, member of the University of Califor-

nia Board of Regents.

(IV)

TABLE OF CONTENTS

Question: Presented

Petition for Writ ot Certiorari

Gpunous Below

Jurisdiction

Statutes Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion ‘

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

(V)

TABLE OF AUTHORITIES

Allen v. Central Intelligence Agency,

636 F.2d 1287 (D.C. Cir. 1980)

Church of Scientology v. U.S. Department of Justice,

611 F.2d 738

Department of Air Force v. Rose.

425 U.S. 342 (1976)

F.B.!. v. Abramson

U.S. » 102 S.Ct. 2054 (1982)

Foman v. Davis,

371 U.S. 178 (1962)

Founding Church of Scientology v. Nationa! Security

Agency,

610 F.2d 824 (D.C. Cir. 1979)

Hayden v. National Security Agency,

608 F.2d 1381 (D.C. Cir. 1979)

Harrop.v. Western Air Lines.

550 F.2d 1143 (9th Cir. 1977)

lrons v. Beil

596 F.2d 468 (1st Cir. 1979)

Kuehnert v. Federal Bureau of investigation

662 F. 2d 662 (8th Cir. 1980)

Lesar v. U.S. Department of Justice

636 F.2d 472 (D.C. Cir. 1980)

Link v. Wabash Railroad

370 U.S. 626 (1963)

Page

12, 13, 14

(Vi)

Cases—Continued Page

Phillippi v. Central Intelligence Agency,

546 F.2d 1009 (D.C. Cir. 1976) 12

Prett v. Webster.

673 F.Zd 403 (D.C. Cir. 1981) 7

United States Department of State v. Washington Post Co.

456 U.S. 595 (1952) 10, 11

Vaughn v. Rosen,

454 F.2d 820 (D.C. Cir. 1973) 4

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1983

ROBERT CARL COHEN AND HELENE

KONIDARD COHEN, PETITIONERS

WILLIAM FRENCH SMITH IN HIS CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

ET AL., RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI TO THE

. UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners hereby petition for a writ of certiorari to

review judgment of the United States Court of Appeals

for the Ninth Circuit in this case.

OPINIONS BELOW

The unreported opinion of the Court of Appeals is at-

tached hereto as Appendix A. The district court's

unreported Order of August 6, 1979 appears as Appen-

dix C to this Petition. The district court's unreported

minute order of October 1, 1979 appears as Appendix

D to this Petition. The district court's unreported Fin-

dings of fact and Conclusions of law appear as Appen-

dix E to this Petition, and its unreported Judgment

entered on June 4, 1950 constitutes Appendix F.

JURISDICTION

The judgment of the Court of Appeals was entered

March 25, 1983, and atimely petition for rehearing was

denied by order dated July 5, 1983. (Appendix B). The

jurisdiction of this Court is invoked under 28 U.S.C. sec-

tion 1254(1).

STATUTES INVOLVED

The Freedom of Information Act. 5 U.S.C. section 552,

and Rule 15(a). Federal Rules of Civil Procedure, are in-

volved in this Petition and appear reproduced, in perti-

nent part, in Appendix G to this Petition.

STATEMENT OF THE CASE

On September 15, 1977, Plaintiffs commenced this ac-

tion before the district court, seeking relief under the

Freedom of Information and Privacy Acts in their third

claim for relief along with damages in their first claim

arising in connection with a conspiracy to violate their

federal civil and constitutional rights. (1)' Jurisdiction

for plaintiffs’ damages claim was predicated upon 42

U.S.C. section 1983 and 1985 along with the First,

Fourth, Fifth, Ninth, Tenth and Fourteenth Amend-

ments tg the United States Constitution.

‘Numbers appearing in parentheses correspond with document con-

trol numbers by which documents are identified in the Excerpt of

2ecord on Appeal filed with the Court of Appeal below.

Pursuant to a stipulation executed by Plaintiffs’

former counsel, the district court dismissed all named

federal agency directors as individually liable defendants,

leaving them in the case as defendants liable in their

respective representative capacities. (453. The govern-

ment promptly moved for Judgment on the Pleadings

as to the damages claim in reliance upon that stipula-

tion, theorizing that this claim was now barred by

sovereign immunity. (47, 48). The gove: nment’s motion

was granted. (56, 57).

Plaintiffs’ former counsel, having failed to conduct any

discovery prior to the discovery cut off date, unsuc-

cessfully sought an extension thereof from the court, (58,

59), Counsel then ‘settled’ the case, and the action was

dismissed on April 1%, 1979. (60).

Meanwhile, Plaintitts retained new counsel in May of

1979, (61) and moved to vacate the purported ‘*settle-

ment” agreement into which former counsel had entered,

pointing out that they only learned about this agreement

following new counsel's retention and had never authoriz-

ed its execution. (62). At the same time, plaintiffs mov-

ed for a reopening of discovery and asserted that only

following new counsel's entry had they learned of its non-

occurrence. (62). The district court granted the former

motion but denied the latter. (63; Appendix C).

Plaintiffs then sought leave to amend their complaint,

attempting to allege additional overt acts, to reinstate

defendants whose ‘ndividual liability had been eliminated

by former counsel's stipulation and to add certain new

defendants. (66). Plaintiffs also moved for withdrawal

of former counsel's stipulation, ‘ndicating that their

knowledge of its execution post-dated new counsel s

retention and that the court's reliance upon this stipula-

ion in granting the government § motion for judgment

on the pleadings rendered it tantamount to an ultra vires

disposition of their damages claim. (73, 75), Additional

lv, plaintiffs moved for reconsideration of the court's

order denying their motions for reopening of discovery

and for leave to file an amended complaint. (71, 74). In

opposition, the government did not claim that prejudice

would arise from leave to amend. (76, 77), These motions

were denied, however. (Appendix C & D).

The government then moved for summary judgment

with respect to Plaintiffs’ third claim for relief, claim-

ing it had not violated any provision of the Freedom of

Information Act or the Privacy Act. (85, &9). Plaintiffs

responded that the government had failed to provide

them with information concerning the total number of

documents identifiable with plaintiffs that were main-

tained by federal agencies and pointed out that materials

already released established the existence of additional

records not revealed by agency affidavits. (109, 118, 119.

121). By this means, Plaintiffs attempted to raise a

triable issue of material fact concerning compliance with

the district court's order requiring an itemization and

indexing of documents pursuant to Vaughn v. Rosen,

484 F.2d 820 (D.C. Cir. 1973). (81: Appendix D).

Ultimately, plaintiffs argued that evidence of improper

withholding by defendant agencies foreclosed summary

judgment in their favor.

Plaintiffs also advanced various objections to govern-

mental exemption claims which were litigated on appeal

and which will be discussed in detail below. All of these

arguments were rejected by the district court, which

granted the government's motion in its entirety. (125,

126; Appendices E and F).

The judgment below was affirmed in all respects by

the Court of Appeal on March 25, 1983, (Appendix A),

and a Petition for Rehearing and Rehearing En Banc was

denied by order dated July 5, 1983, (Appendix B).

REASONS FOR GRANTING THE WRIT

This case presents several unsettled important ques-

tions for review.

1, Paramount among them is the question of whether

in a case involving the Freedom of Information Act's law

enforcement records exemption, the government is en-

titled to summary judgment despite plaintiffs’ presen-

tation of evidence indicating that the records in ques-

tion were compiled not for law enforcement purposes but

rather for purposes related to official interest in Constitu-

tionally protected activities.

In opposing the government's summary judgment mo-

tion, Plaintiffs adduced substantial evidence tending to

demonstrate that the investigations to which they were

subjected by numerous federal agencies, especially the

F.B.1. and the Army, were politically inspired attempts

to gather information concerning their Constitutional-

ly protected activities and associations. Plaintiffs also

maintained that this information was gathered in order

to facilitate massive interference with Robert Cohen's

activities as a writer and film maker by the F.B.1. and

C.1.A., interference which formed the core of their

damages claim and which, according to Plaintiffs,

established that the sustained and massive investiga-

tions to which they were subjected for two decades were

not inspired by “law enforcement’ as opposed to political

purposes. (109; 62, attached exhibits).

The Court of Appeal disposed of this issue by reason-

ing that affidavits presented by the F.B.I. and Army

disclosed that F.B.I. documents identifiable with plain-

tiffs were ‘compiled in investigations into possible viola-

tions by Cohen of federal anti-rebellion and sedition laws,

and the Army deleted information related to national

security investigations.’ While this formulation certain-

ly states the government's claims with accuracy, Plain-

evidence of outright interference with Robert Cohen's

artistic endeavors bv federal operatives and the intense

interest displayed by such agents in Plaintiffs’ political

associations suggests other purposes as having inspired

compilation of at least some records at issue in this case.

The Court of Appeals’ resolution of this issue never-

theless suggests that the government is entitled to sum-

mary judgment of exemption (b)(7) disputes once it has

made evidentiary claims that the records in question

were “compiled for law enforcement purposes”

regardless of whether requesting parties adduce eviden-

tiary support for a challenge to official assertions of

reliance upon such purposes.

This approach to the problem seems at variance with

the language chosen by Congress for exemption (b)(7).

Congressional intent to guarantee that the existence of

actual law enforcement purposes represents a prere-

quisite to this exemption’s availability is clear from the

absence of any language entitling agencies to claim its

benefits simply on the strength of their jurisdiction to

conduct criminal! or national security investigations. Pur-

pose, ‘n other words, constitutes a triable issue of

material fact the contested character of which would

seem to eliminate summary adjudication’s propriety.

In fact, this question has generated conflicting resolu-

tions among the circuits.

One approach, followed by the First and Eighth Cir-

cuits, accords criminal investigatory agencies such as

the F.B.I. a blanket claim of entitlement to exemption

(b\(7) without regard to any showing of legitimate law

enforcement purpose. (/rons v. Bell, 596 F.2d 468, 474

{1st Cir. 1979]; Kuehnert v. F.B.!., 620 F.2d 662, 665-666

[8th Cir. 1980]). Such a rule entitles the F.B.I. to the

benefits of a conclusive presumption that all records pro-

duced by its agents’ activities are compiled “for law en-

forcement purposes’.

A second approach is exemplified by the Ninth Cir-

cuit's opinion in Church of Scientology v. U.S. Depart-

ment of Justice, 611 F.2d 738 (9th Cir. 1979), the sole

case cited by the Court of Appeals below. According to

the Ninth Circuit's test, only agencies having ‘mixed

furction[s], encompassing both administrative and law

enforcement functions, must demonstrate that [they] had

a purpose falling within [their] sphere[s] of enforcement

authority in compiling the particular documents.’ (id.,

748), *An agency which has a clear law enforcement man-

date, such as the F.B.I., need only establish a ‘rational

nexus’ between enforcement of a federal law and the

document for which an exemption is claimed.” (id.). While

the meaning of this nexus test is far from self-evident,

it is clear that an actual showing that the records in ques-

tion have been ‘‘compiled for law enforcement purposes ©

is unnecessary if the originating agency is the F.B.I. The

Ninth Circuit expressly cited /rons v. Be/!, supra, in the

passage setting forth this distinction between ‘mixed

function’ and law enforcement agencies.

Yet a third approach has been formulated by the

District of Columbia Circuit. In Pratt v. Webster, 673

F.2d 408, (D.C. Cir. 1981), the Court of Appeals expressly

rejected the First Circuit approach, embraced the Ninth

Circuit's distinction between mixed function and law en-

forcement agencies but held that law enforcement pur-

pose must be demonstrated even if the agency claiming

this exemption’s benefits falls within the latter category.

(id., 414, 416, 420). The Court then postulates a ‘‘nexus”’

test and held that to establish compliance with its terms,

‘the [law enforcement] agency should be able to iden-

tify a particular individual or a particular incident as che

object of its investigation and the connection between

that individual or incident and a possible security risk

or violation of federal law.”’ (id., 420). The agency should

also establish that its information demonstrating this

nexus stems from a colorably reliable source. (id., 421).

It is unclear whether this test admits to rebuttal by

plaintiffs, however, or whether an agency is entitled to

prevail once this ‘‘nexus”’ is prima facie established. In

Pratt, the Court upheld the exempt status of F.B.1. files

generated in connection with the Bureau's

Counterintelligence Program against the Black Panther

Party notwithstanding the many improper activities

undertaken by operatives associated with

COINTELPRO generally because the prevention of

violence represented a ‘significant aspect’ of its ‘overall

purpose’ (id., 423) and because the records concerning

Mr. Pratt, a Black Panther Party leader, detailed infor-

mation about specific statutory violations of which he

was suspected. (id). Records in the present case contain

no such infornvation, however, and appear to reflect an

investigation inspired by nothing more than the content

of Robert Cohen's films about East Germany, China,

Cuba and the House Un-American Activities Commit-

tee. The Pratt approach, which, in contrast to the Ninth

Circuit Sciento/ogy v. Department of Justice test. re-

quires an actual showing of law enforcement purpose,

would not support summary judgment for the govern-

ment in the present case. An interpretation of exemp-

tion (b)(7) which requires a careful analysis of the pur-

pose for which records were compiled would, moreover.

allow courts to distinguish between proper investiga-

tions and those which, while initially legitimate and

undertaken in good faith, ‘‘at some point [stray] bevond

[their] initial lawful scope and [assume] the nature of a

campaign to harass and attempt to discredit” a target.

(Lesar v. United States Department of Justice, 636 F.2d

472, 487 [D.C. Cir. 1980], discussing F.B.I. files

associated with Reverand Martin Luther King, Jr.)

The circuits have thusfar evidenced the emergence of

three distinct approaches to this question, and it is

unclear whether the most disclosure-oriented test admits

to rebuttal of a prima facie agency showing by requesting

parties. The need for clarification in this important In-

formation law area is obvious.

Nor is any light shed upon the question by this Court's

recent opinion in Federa/ Bureau of Investigation Vv.

Abramson, U.S. 102 S.Ct. 2054 (1982), which

simply addressed the question of ‘whether information

contained in records compiled for law enforcement pur-

poses loses that exempt status when it is incorporated

into records compiled for purposes other than law en-

forcement.” (id., 2057). Left undecided by Abramson is

the initial question of how controversies concerning the

existence or absence of such law enforcement purposes

are to be resolved. This case presents an opportunity to

address precisely that question, thereby resolving a clear

conflict among the circuits.

2. A second question presented by this case involves

FOIA exemption (b)(7)(D), which protects the identities

of confidential sources providing information

documented by investigatory records compiled for law

enforcement purposes. As plaintiffs pointed out below,

the government offered no evidence as to whether the

sources which it assertedly sought to protect were even

alive or currently viable at the time during which this

exemption was asserted. The Court of Appeals dismiss-

ed Petitioners’ objections in this regard by noting that

“(ojne apparent purpose of exemption (b)(7)(D) is to en-

courage people to provide information to the government

(and that sjuch encouragement is enhanced if individual

sources know that their names will remain confidential

even after their deaths, thereby protecting family and

associates... However, the Court of Appeal cited no

authority for its interpretation of this exemption, and

the question presented by Petitioners does not appear

to have been addressed before. Some light on this issue

is shed by this Court's recent Abramson opinion, in

which it was noted that Exemption 7 ‘was intended to

prevent premature disclosure of investigatory materials

which might be used in a law enforcement action.” (id.,

2059). Such a purpose is not served by withholding in-

formation on the ground that its disclosure would

facilitate the identification of persons who are no longer

alive and who provided data about activities so remote

as to be well bevond anv conceivable limitations period.

Much of the material which the government sought to

protect stems from investigations undertaken nearly

wenty vears prior to this litigation’s commencement.

Moreover, it is axiomatic that privacy and reputation

interests do not survive bevond death. If Congress had

wished this exemption to be interpreted in a manner at

variance with this well-established principle, it could cer-

tainlv have so indicated.

3. A third question presented by this case involves

FOIA exemption (b)(6), which applies to ‘personnel and

medical files and similar files the disclosure of which

would constitute a clearly unwarranted invasion of per-

sonal privacy.” In U.S. Department of State v.

Washington Post Company, 456 U.S. 595 (1982), this

Court held that a passport file qualifies as a ‘similar file”

as this phrase appears in exemption (b)(6)'s text. In the

present case, this exemption was invoked by the C.I.A.

in order to prevent the disclosure of information relevant

to third parties’ ‘‘political philosophies, beliefs and

associations, their travels. ..and their personal and con-

fidential relationships.’ (89, p. 15). The State Depart:

ment invoked this exemption in order to protect

disclosure of information about third parties’ contraven-

tion of statutes and regulations. (id.) The Court of Ap-

peals concluded that Weshington Post entitled the

government to invoke this exemption despite the fact

that shielded material was not contained within a per-

sonnel! or medical file. At issue in this case is the outer

boundary of exemption (b)(6)'s similar files requirements.

Washington Post affirmed this Court's conclusion in

Department of Air Force v. Rose, 425 U.S. 352 (1976),

that a file system's similarity to personnel or medical

records depends upon the question of whether the infor-

mation it contains is ‘the kind of confidential personal

data usually included in a personnel file."’ (id., 372).

Washington Post simply stands for the proposition that

information found in a passport file so qualifies. Data

about political philosophies, relations, travels, associa-

ticns and suspected statutory or regulatory violations

is simply not ‘the kind of confidential personal data

usually included in a personnel file.’ The Court of Ap-

peals’ interpretation in Washington Post thus appears

unwarranted. Information about the citizenship status

of third parties, which was found to render the files

within which it was contained ‘‘similar’’ for (b)(6) pur-

poses in Washington Post, is quite precisely what can

be expected to appear in personnel files.

The Court of Appeals’ resolution of this controversy

was based upon its conclusion that Washington Post

demonstrates this exemption's similar files requirement

‘has a broad meaning.’ Just how broad a meaning

should be accorded this component of (b)(6) is a matter

of dispute which only this Court can resolve.

4. Yet another reason for granting this Petition in-

volves exemption (b)(1) of the Freedom of Information

Act, which exempts properly classified information. A

host of circuit court decisions have held that agencies

seeking to invoke this exemption’s benefits must pro-

vide a maximally explicit public justification for their

classification claims and must publically explain their

inability to provide a more explicit justification in terms

that are not simply conclusory. Moreover, agency af-

fidavits are not sufficient if their ‘claims are conclusory’,

merely reciting statutory standards, or if they are too

Vague or sweeping.” (Hayden v. Nationa! Security Agen-

cy, (608 F.2d 1381, 1385 (D.C. Cir. 1979). See also Foun-

ding Church of Scientology v. National Security Agen-

cy, 610 F.2d §24, 831-833 (D.C. Cir. 1979): Allen v. Cen-

tra! intelligence Agency, 636 F.2d 1287, 1292-1294 (D.C.

Cir. 1980); Phillippi v. Central Intelligence Agency, 546

F.2d 1009, 1013 (D.C. Cir. 1976). Case law at the circuit

level also indicates that at the very least, summary judg:

ment cannot be upheld absent in camera review if the

government has presented legally inadequate affidavits.

As pointed out by Petitioners below, however, the

government's affidavits offered in order to establish this

exemption’s availability are no more adequate than those

condemned in Founding Church of Scientology, supra,

and Allen v. C./.A., supra. Moreover, the district court

ignored Plaintiffs’ request for an in camera inspection

of all purportedly exempt materials.

The problem is that this Court has vet to itself

establish precise procedures and standards for resolu-

tion of (b\/1) exemption claims. Many cases contain

language indicating that governmental classification

claims presented in agency affidavits are entitled to

substantial weight. (See Lesér, supra, 481). The tention

between cases emphasizing judicial deference to govern-

mental classification decisions and Congressional in-

sistance upon their validity’s independent de novo

judicial evaluation is reflected in decisions at the circuit

level and calls for resolution by the Supreme Court.’

5. Remaining issues presented by this case center

around this Court's formulation in Link v. Wabash

Railroad, 370 U.S. 626, that a party who ‘‘voluntarily

choose|s as] an attorney as his representative... can-

not [later] avoid the consequences of the acts or omis-

sions of this freely selected agent.’ (id., 633-634). As Peti-

‘This extra discussion is also applicable to exemption (b}(3).

tioners urged below, plaintiffs’ former counsel stipulated

to the dismissal of all named federal agency heads as in-

dividually liable defendants, leaving their damages claim

open for dismissal based upon a governmental sovereign

immunity theory. That counsel's action effectively ter-

minated Plaintiffs’ damages claim is not denied by the

Court of Appeal. Nor is the fact that his acts in this

regard were ultra vires and not supported by any prior

client knowledge or approval. The Court of Appeal’s in-

terpretation of this Court’s decision in Link would sad-

dle litigants with all consequences generated even by

ultra vires actions of their attorneys, including those in-

volving compromise, settlement or dismissal of actions

without client consent. This interpretation of L/n& is not

warranted by that case's facts, however. and is contrary

to intervening circuit court authority. In Link, supra, this

Court simply upheld the power of trial courts to dismiss

lawsuits after having rejected the viability of an at-

torney’s justification for failure to undertake the case's

diligent prosecution. Authority to effect in ultra vires

disposition of a case was not conferred upon counsel by

Link. Moreover, the Court of Appeals inexplicably ig-

nored a post-Link Ninth Circuit decision specifically

holding that counsel may not eftect settlement of their

clients’ cases without authorization and approval. (Har-

rop v. Western Airlines, 550 F.2d 1143 [9th Cir. 1977)}).

The need for clarification of Link's limits is obvious.

Closely related is the question of whether the district

court was entitled to deny a plaintiffs’ motion for reopen-

ing of discovery following new counsel's entry into the

case. The Court of Appeal simply concluded that plain-

tiffs knew that their former lawyer was hesitant to pro-

ceed with this case long before the discovery cut-off date.

The record is uncontradicted, however, that plaintiffs

had no idea that discovery had been, or would not be.

undertaken unti! subsequent to that date. Any finding

that plaintiffs themselves are somehow accountabie for

discovery’s nen-occurrence undcr these circumstances

is simply unwarranted, therefore. Here again, this case's

record thus clearly presents an opportunity to delimit

counsel's authority to etfectively bind clients through

ultra vires actions.

Related to the Link issue is the question of whether

leave to amend a complaint may be denied even absent

a claim that prejudice will attend such relief. A negative

answer is suggested by Foman v. Davis, 371 U.S. 178

(1962). In this case, the Court of Appeals claimed that

denial of Plaintiffs’ motion for leave to amend their com-

plaint was justified as a simple effectuation of prior rul-

ings that vitiated their damages claim. But if the stipula-

tion that generated that claim's dismissal was ultra vires

in charcter, as indicate by the uncontradicted record.

than a denial of leave to amend collides with Rule 14's

requirement that leave ‘shall be freely given when

justice so requires, especially given the absence of any

prejudice claims from defendants. Here again, therefore

the Link doctrine’s outer limits require clarification by

this Court.

CONCLUSION

For the above-stated reasons, it is respectfully submit-

ted that this Petition should be granted.

Respectfully submitted.

LAWRENCE TEETER

Attorney at Law

3701 Wilshire Bivd.

Seventh Floor

Los Angeles, CA 90010

(213) 387-4512

Attorney for Petitioners

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH DISTRICT

No. &1-5368

D.C. No. CV 77-3449 MML

ROBERT CARL COHEN AND HELENE

KONIDARE COHEN, PLAINTIFFS APPELLANTS

WILLIAM FRENCH SMITH, IN HIS CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

ET AL., DEFENDANTS APPELLEES

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE CENTRAL DISTRICT OF

CALAFORNIA

MALCOLM M. LUCAS, DISTRICT JUDGE,

PRESIDING

Argued and Submitted . November 4, 1982

Decided . March 25, 1983

Before: GOODWIN, HUG, and BOOCHEVER,

Curcuit Judges.

Appellants Robert and Helene Cohen brought suit

against numerous federal and state officials for alleged-

ly conspiring to disrupt the livelihood of Robert Cohen

in violation of 42 U.S.C. §§ 1983 and 1955 (Supp. 1980).

The complaint also alleged that federal defendants

unlawfully withheld documents from appellants in viola-

tion of the Freedom of Information Act, 5 U.S.C. § 552

(1976 and Supp. 1982)(FOIA), and the Privacy Act, 5

U.S.C. § 552a (1976). The district court granted partial

summary judgment for the government on the FOIA

and Privacy Act claims.’ The balance of the action was

dismissed. We affirm.

FOIA EXEMPTIONS

The FOIA contains a number of exemptions under

which an agency may withhold portions of or whole

documents. The burden is on the government agency to

establish that a given document is exempt from

disclosure. Church of Scientology v. United States

Department of the Army, 611 F.2d 738, 742 (9th Ci.

1979). In meeting its burden, the government may not

rely upon “conclusory and generalized allegations of ex-

emptions .. but it need not specify its objections in

Before the hearing on the motion tor summary judgment, but

after the briefing period ended. plaintifts submitted additional

memoranda in opposition to defendants’ motion. The court struck

the memoranda as untimely.

In their timely opposition to the motion for summary judgment.

the Cohens raised specific challenges only to one FOIA exemption

used by defendants to withold information. They raised objections

to other exemptions in the two stricken memoranda. They now

argue the district court abused its discretion by striking the sup-

plemental memoranda. Since the Gistrict court discussed each ex:

emption raised in defendants summary judgment motion, we need

not reach the Cohens: contention. We address each FOLIA exemp-

tion challenged on appea!

detail that would compromise the secrecy of the un-

disclosed information. /d. (citation omitted).

In camera inspection of withheld documents is not

always required. Agency affidavits will be sufficient to

justify summary judgment without in camera inspec-

tion when they show, with reasonable specificity, why

the documents fall within the exception. Holy Spirit

Association for the Unification of World Christianity

y. CIA. 636 F.2d 838, 845 (D.C. Cir. 1980!. vacated on

other grounds, 102 S. Ct. 1626 (1982).

EXEMPTION (bi7)(D)

Appellants raise three specific challenges to the use

ot exemption (bv 7)(D), which permits withholding of law

enforcement investigatory records to the extent that pro-

duction of such records would disclose the identity of

a confidential source. First, appellants contend that the

government's invocation of exemption (b)(7)(D) itself

raises a question of material fact as to whether the

sources were assured confidentiality, thus precluding

summary judgment. Second, the Cohens contend that

the government has not proven that the information was

gathered in the course of a lawful investigation. Third,

appellants contend that in order to invoke the exemp-

tion, the agencies must prove that their confidential

sources are still alive.

Appellants’ first contention does not defeat summary

judgment. We note that courts “have denied disclosure

of the names of interviewees and other sources where

it was apparent that the agency's ‘investigatory func-

tion depends for its existance upon information supplied

by individuals who in many cases would suffer severe

detriment if their identities were known.’ See Lamont

v. Department of Justice, 475 F. Supp. 761, 779

(S.D.N.Y. 1979) and cases cited therein.

The court in Lamont granted partial summary judg-

ment to the Department ot Justice as to the Depart-

ment’s deletion of names of confidential informants

because the names were omitted in circumstances from

which confidentiality could reasonably be inferred, ‘that

is, in the course of an investigation that must have ap-

peared highly serious and sensitive to the persons inter-

viewed.’ /d. The documents here include reports on

Cohen's activities from 1947 and earlier. Investigations

ot Cohen included inquiry into trips he made to China

in 1957 and Cuba in 1963. Those inquiries must have ap-

peared “highly serious and sensitive’ to interviewees.

Furthermore, some of the deletions were properly made

under other exemptions.

As to the Cohens’ second contention, the agencies have

demonstrated the information was obtained in the course

of lawful investigations. Because of its explicit law en-

forcement mandate, the FBI need establish only that

withholding the information has a ‘rational nexus” with

enforcement of a federal law. Church of Scientology, 611

F.2d at 748. That standard was met. FBI documents

were compiled in investigations into possible violations

by Cohen of federal anti-rebellion and sedition laws, and

the Army deleted information related to nationa! securi-

ty investigations.

Appellants’ third argument is that the agencies iuust

prove that the confidential source is still alive. The ex

emption contains no such requirement. One apparent

purpose of exemption (b)(7)(D) is to encourage people to

provide information to the government. Such encourage-

ment is enhanced if individual sources know that their

names will remain confidential even after their deaths,

thereby protecting family and associates. The exemption

was properly applied.

EXEMPTION (bil)

This exemption was invoked to withhold information

classified under Executive Order 12065. Appellants

argue that appellees fail to show that the withheld

material was properly classified under Executive Order

12065. They did not give any specific examples to sup-

port their argument. On the other hand, agency at-

fidavits give detailed descriptions of what was withheld

and why. The affidavits justify continued classification

despite the age of some of the documents. The court

must accord the affidavits ‘substantial weight. Leser

v. United States Department of Justice, 636 F.2d 472,

481 (D.C. Cir. 1980). The exemption was properly applied.

EXEMPTION (bi(2)

The State Department invoked this exemption to

delete administrative material, such as routing notations.

The FBI exempted from disclosure informant symbol

numbers and other information which could identify a

source.

Appellants argue this information is not related to in-

ternal personnel rules and practices. In Lesar, however,

the D.C. Circuit held that symbols used to refer to FBI

informants “plainly fall within the ambit of Exemption

2."' 636 F.2d at 485. The public has no legitimate interest

in this administrative information.

EXEMPTION (b)(3)

This provision allows an agency to delete iniormation

specifically exempted from disclosure by statute. The

CIA and FBI deleted information exempted by 50 U.S.C.

§§ 403(d)(3} and 403g (1976), which provide that the

Director of the CIA is responsible for protecting in-

telligence sources and methods from unauthorized

disclosure. This court has held such information properly

exempted. In Nationa/ Commission on Lew Enforce-

ment and Social Justice v. CIA, 576 F.2d 1373, 1376

(9th Cir. 1978), the court affirmed summary judgment

tor the CIA, holding that information withheld under 50

U.S.C. §§ 4031d\(3) and 403g (1976) is within the ambit

of exemption (b)(3),

Appellants argue the affidavits present conclusory

statements and do not show that release of exempted

information could reasonably be expected to identify in-

telligence sources or methods. Here, the affidavits con-

tain enough information from which the court can con-

clude that release could reasonably be expected to reveal

protected sources or methods.

EXEMPTION (b\(5)

The Cohens’ brief sets forth no reasons to believe that

the exemption was misapplied.

EXEMPTION (hb)i6)

The CIA applied exemption (b)(6) to withhold personal

information about third persons concerning political

philosophies, beliefs, travels, affiliations, ‘and other ac-

tivities which such individuals would not suspect would

be placed in the public domain due to the embarrassing

or controversial nature of the information.’ The State

Department deleted records which report third party

violations of federal statutes and regulations.

Appellants argue the withheld information is not the

kind of confidential personal data usually included in a

personnel file. However, the Supreme Court has recent-

ly declared that ‘similar files’’ excludible under exemp-

tion (b6) has a broad meaning. United States Depert—

ment of State v. Washington Post Co., 1028. Ct. 1957,

1960 (1982). In Washington Post, the State Department

withheld information relating to the citizenship status

of third parties. The Court upheld the Department's use

of exemption (b)(6). Here, the exemption was properly

applied.

EXEMPTION (bi7)iC)

The Army invoked this exemption to delete

biographical data about particular people whose names

it released to appellants. The FBI deleted names and

identifving data of third parties who were targets of FBI

investigations. It withheld highly personal, defamatory

or embarrassing information about third persons. It also

withheld the identities of FBI agents and other in-

vestigatory sources.

The statute does not provide for a blanket exemption

for the names of all personnel, but protection in this case

is warrantéd. See Lesar, 636 F.2d at 487-58: see 4a/so

Lamont, 475 F. Supp. at 777. The agencies have declared

that disclosure of withheld data would be an invasion

of privacy. They also declared the information is not rele-

vant to appellants’ request.

EXEMPTION (b)7)E)

This exemption allows an agency to withhold records

which disclose investigative techniques and procedures.

The FBI deleted information which would disclose a

lawful investigative technique for conducting telephone

interviews. The exemption was used only to protect the

technique; the information gathered thereby was

released,

UNIDENTIFIED RECORDS

Appellants’ contention that the agencies failed to

release a number of unidentified records is without merit.

Agencies may lawfully refer those requesting documents

to the agencies of origin. The affidavits demonstrate that

the agencies made a good faith effort to comply with the

Cohens’ requests. The FBI was not required to make an

all-encompassing search of the records of every field of-

fice. United States v. Marks, 578 F.2d 261, 263 (9th Cir.

1978). Appellants give no examples to support their

claim that additional documents were never disclosed.

PRIVACY ACT CLAIMS

Finally, appellants raise no specific arguments on the

Privacy Act claims. The district court properly granted

summary judgment on both the FOIA and Privacy Act

claims.

PROCEDURAL MATTERS

The district court did not abuse its discretion in pro-

cedural rulings challenged by the Cohens. Appellants

were bound by the stipulation entered into by their

counsel. They voluntarily chose their attorney and are

bound by his acts. Link v. Wabash Railroad, 370 U.S.

626, 635-36 (1962). This is not a situation where the at-

torney settled a case without the client's permission.

Although a request for leave to amend a complaint

generally should be viewed liberally, it was not an abuse

of discretion for the district court to deny leave to amend

where the Cohens were trying to revive a claim which

was already dead. The federal defendants had been

dismissed in both their individual and official capacities.

All but one state defendant were dismissed for lack of

service of process. Appellants admitted they were at-

tempting to reintroduce parties already dismissed by

stipulation. They cannot amend their complaint to avoid

the etfects of prior rulings which vitiated their first cause

of action. See Mends v. Dun & Bradstreet, Inc., 670 F.2d

129, 131 (9th Cir. 1982): Glesenkamp v. Nationwide

Mutual insurance Co.,'71 F.R.D. 1, 4 (N.D. Cal. 1974),

aff'd per curiem, 540 F.2d 458 (9th Cir. 1976).

Nor was it an abuse of discretion for the court to deny

an extension or reopening of discovery. The court found

that appellants knew that their former counsel was hesi-

tant to proceed with the case long before the discovery

cut-off date had passed. Again, the litigants are bound

by the conduct of their attorney. Cf. Kung v. FOM In-

vestment Corp.. 563 F.2d 1316, 1318 (9th Cir. 1977).

SOVEREIGN IMMUNITY

The Federal Tort Claims Act waives the United States

government s sovereign immunity only when com-

plainants meet the Act's requirement that they present

their claims against federal defendants to the ap-

propriate federal agency. 28 U.S.C. § 2675(a\/1976). Ap-

pellants failed to comply with the Act. The district court

properly dismissed appellants’ claims as against the

United States on the ground of sovereign immunity.

The Cohens argue that Carter and unknown agents

have not been dismissed from the case. The court entered

an order dismissing the entire action on February 11,

1951. That order included the dismissal of defendants

Carter and unknown agents. The judgment is

AFFIRMED.

10a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 81-5365

D.C. No CV 77-3449 MML

ROBERT CARL COHEN AND HELENE

KONIDARE COHEN, PLAINTIFFS APPELLANTS

WILLIAM FRENCH SMITH, IN HISCAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

ET AL.,. DEFENDANTS: APPELLEES

FILED JULY 5, 19838

Before: GOODWIN, HUG, and BOOCHEVER,

Circuit Judges.

The panel as constituted in the above case has voted

to deny the petition for rehearing and to reject the sug-

gestion for a rehearing en banc.

The full court has been advised of the suggestion for

en banc rehearing, and no judge of the court has re-

quested a vote on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sugges-

tion for a rehearing en banc is rejected.

s Robert Boochever

lla

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No, CV-77-3449-MML

ROBERT CARL COHEN, ET AL., PLAINTIFFS

Vv.

GRIFFIN BELL, ET AL., DEFENDANTS

[Filed Aug. 6, 1979]

Plaintiffs in this action have moved the Court to

reopen the case following the dismissal filed on April 17,

1979: to reopen discovery: to certify for appeal under 28

U.S.C. §1292(b) the dismissal of damage claims against

the federal defendants: and to amend the complaint.

The action was dismissed on April 17, 1979 on the

ground that it was settled or in the process of being settl-

ed. As it appears that no settlement was in fact achiev-

ed, and that plaintiffs have made a timely motion to

reopen the case, the dismissal of April 17, 1979 shall be

withdrawn, and the matter shall be placed on the Court's

calendar of active cases.

The motion to reopen discovery is denied. The parties

have had ample time to conduct discovery in this case.

From an examination of the file and the affidavits sub-

mitted by the parties, the Court concludes that plain-

“12a

tiffs knew of their former counsel's hesitancy to proceed

with the case long before the discovery cut-off date had

passed. Plaintiffs have not shown any reason to reopen

discovery which outweighs the prejudice to the defen-

dants in doing so after the passage of a significant period

of time.

Plaintiffs’ motion to certify for appeal the dismissal

of the damage claims against the federal defendants is

also denied. Plaintiffs’ present counsel has conceded that

all damage claims against the individual federal defen-

dants in other than their representative capacities were

dismissed in July, 1978 pursuant to stipulation of

counsel. That stipulation was made on the assumption

that the named federal officials had not individually

undertaken any acts alleged in the complaint, but were

sued solely because they headed an agency alleged to be

liable for damages. The decision of the Court to dismiss

the remaining damage claims in the first and third causes

of action, because those claims were in fact against the

United States and no administrative claim had been fil-

ed, does not present a controlling issue of law as to which

there is substantia! ground for difference of opinion, nor

will an immediate appeal materially advance the ultimate

termination of the litigation. 28 U.S.C. §1292(b).

The plaintiffs’ request for leave of Court to file an

amended complaint is likewise denied. Certain of the

claims plaintiffs seek to add have already been dismiss-

ed by stipulation of the parties. The other proposed

amendments, listed at pages 5 through 13 of the plain-

tiffs’ Request for Leave of Court to Amend Complaint,

filed June 20, 1979, substantially expand the scope of

the litigation as it now exists. Plaintiffs have unduly

delayed in seeking amendment, and the defendants will

be unduly prejudiced by the amendment of the complaint

at this late date in the proceeding.

On March 13, 1978, the plaintiffs were ordered to serve

l3a

all state defendants within fifteen davs. As of March 13,

1978, plaintiffs had only served Edwar? Carter as one

of the Regents of the University of Califu. ia. As it does

not appear that the remaining persons alleged to be

Regents of the University of California were ever serv-

ed, those persons shall be dismissed from this litigation.

The Pretrial Conference in this case, previously

scneduled for April 16, i979, shall be heid at 10:00 A.M.

on October 8, 1979 in Courtroom 12 of the United States

Courthouse, 312 North Spring Street, Los Angeles,

California. The parties shall prepare their Pretrial

Memoranda and a Pretrial Conference Order in accor-

dance with Fed.R.Civ.P. 16, Local Rule 9, and the special

requirements of this Court as set forth in the attached

Notice of Pretrial Conference and Additional Re-

quirements for Memoranda of Contentions of Fact and

Law and for Pretrial Conference Order.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk shall

serve, by United States mail, counsel of record for all

parties in this matter.

Dated: August 6, 1979

s Malcolm M. Lucas

l4a

APPENDIX D

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV 77-3449-MML

ROBERT CARL COHEN, ET AL., PLAINTIFFS

Vv.

GRIFFIN BELL, ET AL.. DEFENDANTS

[Filed Oct. 1, 1979]

Counsel are present and motions are argued to the

Court. The Plaintiffs’ motion for justification under

Vaughn v. Rosen is granted and the Government is to

file its indexes by January 21, 1980.

The plaintiffs’ motions for reconsideration of request

for leave to amend the complaint, to reopen discovery

for withdrawal of the stipulation dismissing individual

Federal defendants, and of dismissal of the damage ac-

tions are all denied.

The Pre-Trial Conference is continued from October

15, 1979 to February 25, 1980 at 10:00 A.M.

s Malcolm M. Lucas

ld5a

APPENDIX E

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ai 3

No. CV-77-3449-MML

ROBERT CARL COHEN, ET AL, PLAINTIFFS

GRIFFIN B. BELL, ET AL.. DEFENDANTS

[ENTERED JUNE 4, 1980]

FINDINGS OF FACT

1. Plaintiffs are two individuals, one of whom is

Robert Carl Cohen. Plaintiffs allege that in 1975 and ear-

ly 1976, Robert Carl Cohen made requests to the Federal

Bureau of Investigation (the FBI’), the Justice Depart-

ment (i.e., all Justice Department components other than

the FBI), the Central Intelligence Agency (the CIA"),

the State Department, the Postal Service, the Depart:

ment of the Army (the ‘“‘Army’’) and the Internal

Revenue Service (the “IRS") for all records and

documents pertaining to himself in their possession.

2. Plaintiffs allege that the above agencies wrongfully

failed to disclose certain documents to Mr. Cohen.

3. Plaintiffs allege that, by failing to disclose those

documents, the above agencies violated 5 U.S.C.

l6a

§§552(a3) and 552a(d)(1), the respective provisions of

the Freedom of Information Act (the FOIA’) and of

the Privacy Act which mandate such disclosure.

4. Plaintiffs also claim that the above agencies have

violated the following provisions of the Privacy Act,

which deal with agency practices and procedures in com-

piling and maintaining records: 5 U.S.C. §§ 552a(e)(5),

(6), (7), (1) and (2); 5 U.S.C. $55la(c)3); and 5 U.S.C.

552aid)(2).

5. Although the named Federal Defendants include

the Secretary of Defense, the Secretary of the Treusury

and the Director of the Secret Service, plaintiffs do not

allege that the Defense Department, the Treasury or the

Secret Service have violated any provision of the FOIA

or the Privacy Act.

6. The IRS and Postal Service have released

materials responsive to Mr. Cohen's FOIA requests.

7. The IRS and Postal Service, in releasing those

materials, have not withheld any portion of them pur-

suant to the FOIA’s exemption provisions. However, the

IRS and Postal Service have withheld portions of cer-

tain computer printouts that deal with third parties on

the ground that they do not come within the scope of

Mr. Cohen's requests.

8. Although Mr. Cohen claims to have made a request

to the Justice Department for records pertaining to

himself, he never presented any such request to the

manager of the system of records to which he sought

access.

9. The Justice Department advised Mr. Cohen

through a letter of December 2, 1975 that such a request

must be presented to the manager of the system of

records to which he sought access, gave him a list of the

Justice Department component units from which he

could obtain records, and advised him how he could ob-

tain the names of Justice Department records systems

and records managers.

10. Mr. Cohen never took an administrative appeal

from any denial of any request for documents which he

mav have made to the Justice Department.

11. The FBI, CIA. State Department and Army,

have located, retrieved and released documents respon:

sive to Mr. Cohen's FOIA requests.

12. The FBI, CIA, State Department and Army have

withheld some or all of certain documents pursuant to

the following FOIA exemptions: (bi(1), (b)(2), (by(3), (b15),

(bi6i, (bu7NC), (bN7ND) and (bN7HE) (5 U.S.C.

§552i bi 1-13), (5), (6), (THC)(E)).

13. Officials of the FBI, CIA, State Department and

Army have submitted affidavits that itemize, index and

justify the withholdings those agencies have made of

materials responsive to Mr. Cohen's FOIA requests.

14. FOIA exemption (b)(1) has been invoked by the

FBI, CIA, and Army to withhold from Mr. Cohen cer-

tain materials that have been properly classified pur-

suant to Executive Order 12065.

15. FOIA exemption (b)i2) has been invoked by the

FBI to withhold from Mr. Cohen the symbol numbers

it has assigned to certain individuals who have supplied

it with certain information and certain other data which

would identify such informants.

16. FOIA exemption (b)(2) has also been invoked by

the State Department in support of its deletion of cer-

tain material that, it believes. consisted of classification

or administrative information.

17. Nounredacted copies exist of the documents con-

taining the State Department's (b\(2) deletions.

15. Mr. Cohen never took an administrative appeal

with respect to the deleted portions of any documents

released to him by the State Department.

19. FOIA exemption (b3) has been invoked by both

the CIA and the FBI to delete certain materials pursuant

lsa

to 50 U.S.C. §§403(d3) and 403g.

20. The material deleted by the FBI pursuant to ex-

emption (b)(3) consists of the names of one or more CIA

employees.

21. The material deleted by the CIA under exemp-

tion (b)(3) includes, among other things, information that

reveals the identity of a source of intelligence, informa-

tion that reveals the methods by which intelligence has

been secured and information that consists of CIA

employee names, official titles and organizational data.

22. FOIA exemption (b)(5) has been invoked by the

FBI to withhold certain materials that were compiled

in connection with this litigation and that are subject

to the protection of the work-product doctrine.

23. FOIA exemption (b)(6) has been invoked by the

CIA and State Department to delete from the materials

released to Mr. Cohen information concerning other

individuals.

24. The material deleted by the CIA pursuant to ex-

emption (b)(6) includes data about the political

philosophies, beliefs and associations of certain third par-

ties; their travels; and associations, including their per-

sonal and confidential relationships.

25. The material deleted by the State Department

under exemption (b)(6) depicts certain third parties in a

derogatory light in that it reports their contravention

of statutory and regulatory requirements of the United

States Government.

26. Mr. Cohen has never suggested that he is in-

terested in documents or portions of documents that per-

tain to third parties, nor has he suggested that the public

interest will be served if he is permitted to obtain the

materials withheld by the CI.\ and State Department

pursuant to exemption (bii6).

27. FOIA exemption (bi 7)'C) has been invoked by the

FBI and the Army to delete from the materials releas-

ed to Mr. Cohen information concerning third parties.

28. FOIA exemption (bi/7)(C) has also been invoked

by the FBI to delete from the materials released to Mr.

Cohen the identities of third parties it has interviewed

and personal information about them, including symbol

numbers assigned to certain of them.

29. FOIA exer mption | (bu7"C) has further been invok-

ed by the FBI to delete from the materials released to

Mr. Cohen the identities of the FBI personnel responsi-

ble for the investigative activities recorded therein, the

identities of other FBI personnel. and the identities of

certain personnel from other government agencies.

30. With respect to material that the FBI has deleted

pursuant to exen ption ib 7)C) and that reveals the iden-

tities of third parties it has interviewed, the public in-

terest favors the withholding of such material rather

than‘its disclosure, because ‘disclosure may lead to a

diminution of the public’s willingness to supply infor-

nation to the FBI.

31. Mr. Cohen has never suggested that he is in-

terested in documents or portions of documents that per-

tain to third parties, nor has he suggested that the public

interest will be served if he is permitted to obtain the

materials withheld by the FBI and Army pursuant to

exemption (b)(7(C).

32. FOIA exemption (b)(7D) has been invoked by the

FBI and the Army to delete from the materials releas-

ed to Mr. Cohen the identities of individuals who sup-

plied information under either express or implied

assurances of confidentiality. The deleted material in-

cludes the symbo! numbers the FBI has given certain

informers.

33. FOIA exemption (b)(7)(D) has been similarly in-

voked by the State Department to deiete the name of

an individual who supplied information to the FBI.

34. FOIA exemption (b)(7)(E) has been invoked by the

20a

FBI to delete froin the materials released to Mr. Cohen

information that would disclose a lawful investigative

technique for conducting interviews and telephone calls.

35. Each deletion the FBI, CIA, State Department,

Postal Service. Army and IRS has made in the materials

released to Mr. Cophen is lawful and proper under the

Privacy Act.

36. Some or all of the deletions each such agency has

made consisted of materials that pertain to persons other

than Mr. Cohen.

37. Some of the deletions the FBI, CIA and Army

have made consist of materials that are subject to FOIA

exemption (b)/1).

38. Some of the deletions the FBI and CIA have

made are of materials exempted from release to the

public by 50 U.S.C. §40id) (3) and 403g.

39. The FBI records at issue are investigatory

materials compiled for law enforcement purposes.

40. One of the State Departments’ deletions appears

in a Security or Passport Record and identifies a con-

fidential informant.

41. The Army records at issue are part of the United

States Army Intelligence Agency (*‘USAINTA") In-

vestigative Files System and were created in the course

of lawful national security investigations of Mr. Cohen.

42. The Postal Service records at issue are mail cover

records. :

43. Plaintiffs have not identified a single adverse

determination that the FBI, Justice Department, CIA,

State Department, Postal Service, Army or IRS have

made about Mr. Cohen, nor have they identified a single

agency record that is so inaccurate, irrelevant, untime-

ly or incomplete as to cause any such determination to

be unfair.

44. Plaintiffs have not identified any disclosure of

any recerd about Mr. Cohen that the FBI, Justice

i iw

—~

Department, CIA, State Department, Postal Service. Ar-

my or CIA have made at any time since September 27,

1975, the effective date of the Privacy Act.

45. Plaintiffs have not identified a single agency

record that describes how Mr. Cohen has exercised his

First Amendment rights, the maintenance of which is

not pertinent to or within the scope of an authorized law

enforcement activity.

46. Plaintiffs have not identified any information col-

lected by the FBI, Justice Department, CIA. State

Department. Postal Service, Army or IRS afer the ef-

fective date of the Privacy Act. that was collected from

a third party, ought to have been collected from Mr.

Cohen, and could have an adverse effect on any agen-

cys determinations about Mr. Cohen's rights, benefits

and privileges under any federal program.

47. Plaintiffs do not identify any record or portion

of a record which ought to be removed from the files of

the FBI, Justice Department. CIA. State Department.

Postal Service, Army or IRS as irrelevant to and un-

necessary for the accomplishment of any such agency's

purposes.

48. Plaintiffs do not allege that Mr. Cohen ever ask-

ed the FBI, Justice Department, CIA. State Depart-

ment, Postal Service, Army or IRS to make available

to him their accountings of the disclosures they had

made, if any, of agency records pertaining to Mr. Cohen.

49. Plaintiffs do not allege that Mr. Cohen ever ask-

ed any agency to amend any agency record pertaining

to him.

50. No genuine issue of material fact exists as to the

third claim for relief against the federal defendants.

CONCLUSIONS OF LAW

1. The IRS and Postal Service have retrieved and

9).

eed

released to Mr. Cohen materials responsive to his FOIA

request.

2. Inso doing, the IRS and Postal Service have not

withheld any materials under any of the FOIA’s exemp-

tion provisions.

3. TheIRS and Postal Service have not violated the

FOIA.

4. Because he did not present his request for Justice

Department records to the manager of the particular

system of records to which he sought access, Mr. Cohen

did not comply with 28 C.F.R. §16.41 and, pursuant to

5 U.S.C. §(2)(3)(B), the Justice Department was not re-

quired to comply with his request.

5. Mr. Cohen's failure to comply with 28 C.F.R.

§16.4lia) and his failure to take an administrative ap-

peal with respect to his request for Justice Department

records constituted a failure to exhaust his ad-

ministrative remedies.

6. Because Mr. Cohen never exhausted his ad-

ministrative remedies with respect to his request to the

Justice Department, this Court cannot grant relief under

the FOIA.

7. In withholding matters that are properly classified

under Executive Order 12065, the Army, CIA and FBI

have properly invoked exemption (b)(1).

8. The symbol numbers that the FBI assigns to its

informers are properly withheld under exemption (b)(2).

9. In withholding such symbol numbers pursuant to

exemption (b)(2), the FBI has properly invoked exemp-

tion (b)(2).

10. Administrative markings on documents are pro-

perly withheld under exemption (bi(2).

ll. In withholding what it believes to have been cer-

tain classification or administrative information (eé.g.,

routing information), the State Department has proper:

ly invoked exemption (b}(2).

12, Because no unredacted copies exist of the

documents containing the deletions the State Depart-

ment made pursuant to exemption (b)(2), any dispute con-

cerning such deletions is moot.

13. Because Mr. Cohen never took an administrative

appeal with respect to the deleted portions of documents

released to him by the State Department, Mr. Cohen

never exhausted his administrative remedies and this

Court cannot grant any relief.

14. Pursuant to FOIA exemption (bi(3), matters are

exempt from release if certain statutes, other than the

FOIA, so exempt them.

id. 50 U.S.C. §§4031d(3) and 403g are two statutes

that exempt certain information from release under the

FOIA and are therefore statutes to which FOIA exemp-

tion (b)(3) applies.

16. In withholding matters that come within the

scope of 50 U.S.C. §4031d)(3) and 403g. the FBI and CIA

properly invoked exemption (b}(3).

17. The work-product doctrine is a proper basis for

the deletion of material under exemption (b)i5).

18. In withholding materials that were compiled in

connection with this litigation and that are subject to

the protection of the work-product doctrine, the FBI pro-

perly invoked exemption (b)(5).

19. In determining whether particular material comes

within the scope of exemption (b)(6), this Court must

balance the interests of the public in obtaining disclosure

of the material against the subject individuals’ privacy

interests.

20. If the material withheld by the CIA and State

Department pursuant to exemption (b)(6) is released,

such release will violate the privacy interests of third par-

ties, in that it will disclose information concerning their

political philosophies, beliefs and associations: their

travels: their personal and confidential relationships: and

J4da

their possible violation of federal statutes and

regulations.

21. Because Mr. Cohen has not suggested that the

public interest will be served if he is permitted to obtain

the materials withheld by the CIA and State Department

pursuant to exemption (b)(6), the individuals’ privacy in-

terests in the non-disclosure of such materials must

prevail over the public interest in their disclosure.

22. The CIA and State Department thus have pro-

perly invoked exemption (b)(6).

23. An agency may not withhold material under ex-

emption (b)(7)i(C) unless the public's interest in the

disclosure of such information is outweighed by the sub-

ject individual's interest in non-disclosure.

24. If the material withheld by the Army and FBI

pursuant to exemption (b)(7)(C) is released, it will violate

the privacy interests of the subject individuals in that

will disclose (a) that they are discussed in Army or FBI

investigative records, (b) that they have been informants

for the FBI or (c) that they are FBI or other government

personnel who have been involved in FBI investigatory

activities.

25. Because Mr. Cohen has not suggested that the

public interest will be served it he is permitted to obtain

the materials withheld by the FBI and Army pursuant

to exemption (b)(7)(C), those individuals’ privacy in-

terests in the non-disclosure of such materials must

prevail over the public interest in their disclosure.

26. Moreover, with respect to material deleted by the

FBI under exemption (b)(7)(C) that reveals the identities

of third parties whom the FBI has interviewed, the

public interest favors the withholding of such material

to safeguard the public's willingness to supply informa-

tion to the FBI.

27. The FBI and Army have properly invoked exemp-

tion (by 7)C)

28. In withholding material that would identify in-

dividuals who have supplied information to the FBI or

the Army under express or implied assurances of con-

fidentiality, the FBI, Army and State Department pro-

perly invoked exemption (b)(7)(D).

29. In withholding material that would disclose a

lawful investigative technique for conducting interviews

and telephone calls, the FBI properly invoked exemp-

tion (bN THE).

30. 5 U.S.C. §552a:d)1) requires every federal agen-

cy, upon reques st. to grant to individuals access to infor-

mation or records about themselves.

31. Because Mr. Cohen's request to the Justice

Department for records concerning himself did not com-

ply with the requirements of 28 C.F.R. §16.41(a), he never

made a request that obligated the Justice Department

to comply with 5 U.S.C. §552a(d)(1).

32. Although the FBI has deleted certain materials

from the records released to Mr. Cohen, such deletions

do not constitute violations of 5 U.S.C. §552a(d)(1).

33. Because the records containing such deletions are

investigatory materials compiled for law enforcement

purposes, they are exempted by 5 U.S.C. §552a(k)(2) and

28 C.F.R. $16 .96(a\(1) from release under 5 U.S.C.

§552a(d\(1).

34. Moreover. to the extent that such deleted

materials are subject to FOIA exemption (b)(1), they are

exempted by 5 U.S.C. §552a(k)(1) and 28 C.F.R.

§16.96/a)(1) from release under 5 U.S.C. §552a(d)(1).

35. Further, to the extent that such deleted materials

do not relate to Mr. Cohen, they do not come within 5

U.S.C. §552(a\idi(1) because that statute requires only

that an agency grant an individual access to records

about himself.

36. Although the CIA has deleted certain materials

from the records released to Mr. Cohen, such deletions

26a

do not constitute violations of 5 U.S.C. §552a/dj(1).

37. Tothe extent that such deleted materials do not

relate to Mr. Cohen, they do not come within 5 U.S.C.

§552a(d)(1).

38. Tothe extent that such deleted materials are sub-

ject FOIA exemption (b)(1), they are exempted by 5

U.S.C. §552a(k)(1) and 32 C.F.R. §19011.71(a)(1) from

release under 5 U.S.C. §552a(d)(1).

39. Tothe extent that such deleted materials are sub-

ject to 50 U.S.C. §403(d)(3), they are exempted by 5

U.S.C. §552a(j)(1) and 32 C.F.R. §1901.61(d) from release

under 5 U.S.C. §552a(d)(1).

40. Tothe extent that such deleted materials are sub-

ject to 50 U.S.C. §403g, they are exempted from release

under 5 U.S.C. §552a(d)(1).

41. Although the State Department has deleted cer-

tain materials from the records released to Mr. Cohen,

such deletions do not constitute violations of 5 U.S.C.

§552a(d)i(1).

42. Tothe extent that such deleted materials do not

relate to Mr. Cohen, they do not come within 5 U.S.C.

552a(d)(1).

43. The deleted material that appears in a State

Department Security or Passport Record and identifies

a confidential informant is exempted by 5 U.S.C.

§552a(k)(2) and 22 C.F.R. §6a.6(j)(2) from release under

5 U.S.C. §552a(d)(1).

44, To the extent that those deleted materials appear

in State Department records that have been destroyed

pursuant to routine record destruction procedures, they

cannot now be released and any claim under 5 U.S.C.

§552aid)(1) with respect to them is therefore moot.

45. Although the Postal Service and IRS have

deleted certain materials from the records released to Mr.

Cohen, such deletions do not constitute violations of 5

U.S.C. §552aid)i1)

46. Such deleted materials do not relate to Mr. Cohen

and. theretore, do not come within 5 U.S.C. §552aid)(1).

_47. Although the Army has deleted certain materials

from the records released to Mr. Cohen, such deletions

do not constitute violations of 5 U.S.C. sperma

48. Because the records containing such deletions are

part of the USAINTA Investigative Files System and

were created in the course of lawful national security in-

vestigations of Mr. Cohen. they are exempted from

release under 5 U.S.C. §552a(d)(1) by 5 U.S.C. §552a(k)2)

and AO502.10a DAMI, reproduced at 32 C.F.R. §505.9.

49. Moreover, to the extent that such deleted

materials do not relate to Mr. Cohen. they do not come

within 5 U.S.C. §552a(d)(1).

50. Because plaintiffs have neither identified a single

adverse determination that the FBI, Justice Depart:

ment. CIA. State Department, Postal Service, Army or

IRS have made with respect to Mr. Cohen nor identified

a single agency record that was so inaccurate, irrelevant,

untimely or incomplete as to cause any such determina-

tion to be unfair, they have failed to state a claim as to

any agency's violation of 5 U.S.C. §552a(e\(5).

51. Pursuant to 5 U.S.C. §552a(k2), 28 C.F.R.

16.96(a1) and 39 C.F.R. §266.9, the FBI and Postal Ser-

vice records at issue herein are exempt from the provi-

sions of 45 U.S.C. $55 1aley(5).

52. By its terms, 5 U.S.C. §552a(e6) cannot apply

to disclosure of records unless they occurred after

September 27, 1975. the effective date of the Privacy

Act.

53. The complaint does not allege that on or after

September 27, 1975, ihe FBI, Justice Department, CIA,

State Department, Postal Service, Army or IRS made

any disclosure of records pertaining to Mr. Cohen to

anyone outside the federal government.

54. Plaintiffs tail to state a claim us to any such agen-

28a

cy's violation of 5 U.S.C. §552a(e)(6).

55. 5 U.S.C. §552a(e)(7) prohibits agencies from main-

taining records that describe how individuals exercise

their First Amendment rights unless the maintenance

of such records, among other things, is expressly per-

mitted by statute or ‘pertinent to and within the scope

of an authorized law enforcement activity.”’

56. Because plaintiffs do not identify any agency

records that are claimed to contravene 5 U.S.C.

§552a/e)(7), they do not state a claim as to any agency's

violation of it.

57. Because plaintiffs have not identified any infor-

mation collected by the FBI, Justice Department, CIA,

State Department, Postal Service, Army or IRS that (1)

was collected after the effective date of the Privacy Act,

(2) was collected from a third party, (3) ought to have

been collected from Mr. Cohen, and (4) could have an

adverse effect on any agency's determinations about Mr.

Cohen's rights, benefits, privileges under any federal pro-

gram, they do not state aclaim as to any agency's viola-

tion of 5 U.S.C. §552a/e}(2).

58. Moreover, neither the FBI nor the Postal Service

violated 5 U.S.C: §552a\e)(2) because the records of those

agencies at issue here are exempted from the provisions

of 5 U.S.C. §552a(e)(2) by U.S.C. §552a(k)(2), 28 C.F.R.

§16.96(a)(1) and.39 C.F.R. §266.9(b)(2).

59. Because plaintiffs have not identified any record

or portion of a record that ought to be removed from the

files of the FBI, Justice Department, CIA, State Depart-

ment, Postal Service, Army or IRS because it is irrele-

vant to and unnecessary for the accomplishment of any

such agency's purposes, they do not state aclaim as to

any agency's violation of 5 U.S.C. §552a(e)(1).

60. Moreover, pursuant to 5 U.S.C. §552a(k)(2), 28

C.F.R. §16.96(aj(1) and 39 C.F.R. §266.9, the FBI and

Postal Service records at issue here are exempt from the

29a

-- oO

provisions of 5 U.S.C. §552aie)(1).

61. 5 U.S.C. §552a(c\(1) requires agencies to keep ac-

curate accountings of the dates, natures and purposes

of certain of their disclosures of records and to note, in

such accountings, the names and addresses of each per-

son or agency to whom such disclosures are made.

62. 5 U.S.C. §552aic3) requires such agencies to

make those accountings available upon request to the

persons named in the records.

63. Because plaintiffs do not allege that Mr. Cohen

ever requested the FBI, Justice Department, CIA, State

Department. Postal Service, Army or IRS to make any

such accountings available to him, they do not state a

claim as to any agency's violation of 5 U.S.C. §552a(c)(3).

64. Moreover, pursuant to 5 U.S.C. §552a(k)(2), 28

C.F.R. §16.96(ai1) and 39 C.F.R. §266.9, the FBI and

Postal Service records here at issue are exempt from the

provisions of 5 U.S.C. §552aic)(3).

65. In addition. pursuant to 5 U.S.C. §551/j(1) and

32 C.F.R. §1901.61(b), the CIA records at issue here are

exempt from the provisions of 5 U.S.C. §552a(c)(3).

66. 5 U.S.C. §552a(d)(2) permits an individual to re-

quest the amendment of agency records pertaining to

him and directs the agency possessing such records

either to make the requested amendment or to advise

the incividual why it declines to do so.

67. Because plaintiffs have not alleged that Mr.

Cohen ever asked any agency to amend any record per-

taining to him. they fail to state a claim that any agen-

cv has violated 5 U.S.C. §552a(d)i2).

68. Moreover, pursuant to 5 U.S.C. §552a(k)(1) and

(2): 28 C.F.R. §16.96(a)(1); 32 C.F.R. §1901.71(a)(1) and

(2); 22 C.F.R. §6a.6(j)(2): 39 C.F.R. §266.9(b)(1); and A

0502.10a DAMI, reproduced at 32 C.F.R. §505.9, some

or all of the FBI, CIA, State Department, Postal Ser-

vice and Army records at issue here are exempt from the

30a

provisions of 5 U.S.C. §552a(d)(2).

69. The moving federal defendants are entitled to

judgment as a matter of law on plaintiffs’ third claim

for relief.

Dated: June 3, 1980.

s Malcolm M. Lucas

APPENDIX F

ALICE DANIEL

Assistant Attorney General

ANDREA SHERIDAN ORDIN

United States Attorney

STEPHEN D. PETERSEN

Assistant U.S. Attorney

312 N. Spring Street

_ Los Angeles, California 90012

Telephone: (213) 688-3552

BARBARA B. O'MALLEY

ALPHONSE M. ALFANO

DAVID M. GLASS

Attorneys, Department of Justice

10th & Pennsylvania Ave., N.W.,

Room 3515

Washington, D.C. 20530

Telephone: (202) 633 8403

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV 77-3449-MML

ROBERT CARL COHEN, ET AL., PLAINTIFF

Vv.

GRIFFIN BELL, ET AL.,. DEFENDANTS

[Entered June 4, 1980]

32a

JUDGMENT

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED, pursuant to the Findings of Fact and Con-

clusions of Law filed concurrently herewith, that Judg-

ment, with prejudice and without costs, be, and the same

is, entered in favor of the Federal Defendants (i.e., all

defendants herein other than Edward W. Carter), with

respect to all portions of the complaint which claim that

any federal agency has violated any provision of the

Freedom of Information Act, 5 U.S.C. section 552, or of

the Privacy Act, 5 U.S.C. section 552a.

Dated: This 21 day of May, 1980.

s/Malcolm M. Lucas

Ss)

APPENDIX G

STATUTORY PROVISIONS INVOLVED

The Freedom of Information Act, 5 U.S.C. section 552,

provides, in pertinent part, as follows:

a2) Except with respect to the records made available

under paragraphs (1) and (2) of this subsection, each

agency, upon... request,... shall make the records pro-

mptly available to any person.

(b) This section does not apply to matters that are

(1)(A) specifically authorized under criteria establish-

ed by an Executive order to be kept secret in the in-

terest of national defense or foreign polic - and (B) are

in fact properly classified pursuant to si .h Executive

order:

(2) related solely to the internal personnel rules and

practices of an agency:

(3) specifically exempted from disclosure by statute

(other than section 552b of this title [5 U.S.C. section

552b]), provided that such statute (A) requires that the

matters be withheld from the public in such a manner

as to leave no discretion on the issue, or (B) establishes

particular criteria for withholding or refers to par-

ticular types of matters to be withheld:

(6) personnel and medical files and similar files the

disclosure of which would constitute a clearly unwar-

ranted invasion of personal privacy:

(7) investigatory records compiled for law enforcement

purposes, but only to the extent that the production

of such records would (A) interfere with enforcement

proceedings, (B) deprive a person of a right to a fair

trial or an impartial adjudication, (C) constitute an un-

warranted invasion of personal privacy, (D) disclose

the identity of a confidential source and, in the case

34a

of a record compiled by a criminal law enforcement

authority in the course of a criminal investigation, or

by an agency conducting a lawful national security in-

telligence investigation, confidential information fur-

nished only by the confidential source, (E) disclose in-

vestigative techniques and procedures, or (F) endanger

the life or physical safety of law enforcement

personnel;

Any reasonably segregable portion of a record shall be

provided to any person requesting such record after dele-

tion of the portions which are exempt under this

subsection.’

Rule 15(a) of the Federal Rules of Civil Procedure pro-

vides, in pertinent part:

(a) Amendments. Any party may amend his pleading

once as a matter of course at any time before a respon-

sive pleading is served or, if the pleading is one to

which no responsive pleading is permitted and the ac-

tion has not been placed upon the trial calendar, he

may so amend it at any time within 20 days after it

is served. Otherwise a party may amend his pleading

only by leave of court or by written consent of the

adverse party; and leave shall be freely given when

justice so requires...."

CERTIFICATE OF SERVICE

I, Lawrence Teeter, hereby declare under penalty of per-

jury that on September 2, 1983, I mailed 3 copies of the

attached Petition to opposing counsel addressed as

follows:

Leonard Schaitman, Esq.

Marilyn Urwitz, Esq.

Attorneys, Appellate Staff

Civil Division, Room 3617

Department of Justice

Washington D.C. 20530

John Bower, Esq.

3200 Wilshire Blvd.

South Tower

Los Angeles, California 90010

EXECUTED this 2nd day of September, 1983, at Los

Angeles, California.

LAWRENCE TEETER

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.