Opposition Brief — Carney v. Department of Justice

No, 93-2041

+ debi ms rc

In the Supreme Court of the Cinites Bates” jj

OCTOBER TERM, 1994

) ‘1 &

BRIEF FOR THE RESPONDENT IN OPPOSTT!

i QUESTION PRESENTED

Whether, in this action by petitioner under the

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

court abused its discretion by denying petitioner’s

motion to conduct discovery under Fed. R. Civ. P. 56(f)

before ruling on the government’s motion for summary

judgment on its exemption claims.

TABLE OF CONTENTS

Page

I eae irea ts cake casnghaubuasoeabdatnosceshonendeaanednces l

NGO RRR I nC FS nS ee oe a l

Re ae a as a ian smadiidnvinasendecdauavasieievene l

isso ton soc snsbsSendeasdenwnsensadudddeansennsadenssneecs 5

a sesunutatavedehasctadenmecnit 12

TABLE OF AUTHORITIES

Cases:

Applegate v. Top Assoes., Inc., 425 F.2d 92 (2d Cir.

ig, BMA CLR LETOOPTOS TOTE RENE SESS SETET RET TET S

Celatex Corp. v. Catrett, 477 U.S. 317 (1986) ................... 7

Church of Scientology v. IRS, 991 F.2d 560 (9th Cir.

nT os sahoneandonseomsudeuscs y

Conte mporary Mission, Inc. v. United States Postal

erg ee eee he CE EP, TOG) coccccncicocoscccccsecccssnseccsccs ~

Cramer v. Devon Group, Inc., 774 F. Supp. 176 (S.D.N.Y.

Ie penahununsakabubaadconnanas »

Mie V. MOM, 410 UB. TE C1GTB) cccccccsccccccoscoccceccccscssceees 5. 7

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ........... 10

Lujan Vv. National Wildlife Fed ration, 497 U.S. s7

NTE RINIA cidicildel dans cones dan cucahaatcestcansinbtecdd sanacdoenduddsouncays 7

Miller v. Department of State, 779 F.2d 1378 (8th Cir.

1985) ,

Ogle shy v. De partment of the Army, 926 F.2d 57 (D.C.

NIN Leste eden cdbastssdaphiisledubaditannsikceenialeanediddadveinndnénine 1]

afecara Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir.

RE inn 3 ead SSP Oa SORE Sy AAPL OP Re 6.1]

Silets v. Department of Justice, 945 F.2d 227 (7th Cir.

1991), cert. denied, 112 S. Ct. 2991 (1992) ..................... y

Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310

RE es aceon che sae ehls calcd len) ccadducasaadacesnsickanuxes 10

(IIT)

IV

Statutes and rule: Page

Freedom of Information Act, 5 U.S.C. 552 woes l |

SU, Be siicertaeeiericccaeen 5,7 |

Bi UDA K, CRD astncicicececseresiensincsniasecsicstndeancepestonnanie 3 |

Be UBM, BERND cecescscccsenescossensdcscnccssarencdccnnasucsanssenss 3

POG. Bh. CAV. FF. BUME) ccsenessesusscssasssescsesessses z, 3, 4, 5, 8, 9, IO, 1

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1994

Nv. 93-2041

DAVID CARNEY, PETITIONER

v.

UNITED STATES DEPARTMENT OF JUSTICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-16a) is

reported at 19 F.3d 807. The opinion of the district court

(Pet. App. 17a-31a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 23, 1994. The petition for a writ of certiorari was

filed on June 21, 1994. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner requested documents from several com-

ponents of the Department of Justice under the Freedom

of Information Act (FOIA), 5 U.S.C. 552. The Depart-

(1)

2

ment withheld certain documents responsive to

petitioner’s requests on the ground that they fell within

two FOIA exemptions. In this action by petitioner to

compel disclosure of the withheld documents, the district

court granted summary judgment for the Department

after denying petitioner’s motion to conduct discovery

under Fed. R. Civ. P. 56(f). Pet. App. 17a-3la. The court

of appeals affirmed. /d. at la-16a.

1. In October 1991, petitioner, who is a lawyer and

graduate student in political science, submitted

numerous, extensive FOIA requests to several com-

ponents of the Department of Justice. The requests

sought documents relating to Supreme Court appoint-

ments, lower federal court appointments, and Depart-

ment personnel. Petitioner later submitted follow-up

requests seeking documents relating to additional

Department personnel, the Department’s FOIA

processing procedures, and the processing of his own

requests. Three Department components—the Office of

Legal Counsel (OLC), the Office of Information and

Privacy (OIP), and the Civil Rights Division (Civil

Rights)—were responsible for processing petitioner’s

requests. Pet. App. 2a-3a, 19a; see C.A. App. 19.

2. In May 1992, petitioner filed this action against the

Department of Justice in the United States District

Court for the Western District of New York, seeking to

compel disclosure of the requested documents. The

district court stayed the proceedings until December 15,

1992, to allow OLC, OIP, and Civil Rights to complete

the processing of petitioner’s requests. Each component

later made a large quantity of responsive material

available to petitioner by furnishing him with copies of

many documents and permitting him to examine and copy

other documents at the Department’s offices. The

components also withheld certain responsive documents

in whole or in part, however, under Exemption 5' and

Exemption 6° of the FOIA. Pet. App. 5a-6a, 23a-24a.

The Department moved for summary judgment on its

exemption claims. In support of the motion, the Depart-

ment submitted three lengthy declarations from the

officials in OLC, OIP, and Civil Rights who had super-

vised the processing of petitioner’s requests. C.A. App.

17-38, 61-82, 162-169 (reproducing declarations). Each

declaration described how the component had searched

for responsive documents, what documents had been

withheld, and why the withheid documents were exempt

from disclosure under the FOIA.

Instead of opposing the government's summary judg-

ment motion on the merits, petitioner filed procedural

motions seeking to conduct discovery under Fed. R. Civ.

P. 56(f), to compel responses to discovery requests that

he had submitted with his complaint, and to strike the

three declarations. In support of those motions, peti-

tioner alleged in an affidavit that he believed that the

Department had not identified or accurately described all

responsive documents. Petitioner claimed that his belief

was based on numerous confidential interviews and his

own research. He did not, however, identify any of those

interviewees or the research on which he relied. C.A.

App. 197-212.

' FOIA Exemption 5 exempts from disclosure “inter-agency or

intra-agency memorandums or letters which would not be available

by law to a party other than an agency in litigation with the

agency.” 5 U.S.C. 552(b)(5).

»

“ FOIA Exemption 6 exempts from disclosure “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).

4

The district court denied petitioner’s procedural

motions.” Pet. App. 17a-3la. In particular, the court

found “absolutely no basis for determining that

[petitioner’s] [Rule] 56(f) motion * * * is grounded on

anything other than speculation.” Jd. at 28a. The court

held that such speculation, “absent any evidence to

contradict [the Department’s] proof, or to establish [the

Department’s|] bad faith, is insufficient to sustain

[petitioner’s] request pursuant to Rule 56(f).” Ibid.

(citation omitted) The court further held that the

withheld documents fell within the claimed exemptions,

and it accordingly granted summary judgment for the

Department. /d. at 24a-26a."

5. In the court of appeals, as in the district court,

petitioner did not challenge the government’s exemption

claims on the merits. Instead, as relevant here, he

challenged only the district court’s decision to rule on

the government’s motion for summary judgment without

ordering discovery under Rule 56(f). The court of

appeals affirmed. Pet. App. la-l6a. It observed that peti-

tioner had alleged “that the [Department] has concealed

the existence of records and mischaracterized other

l’etitioner based his motion to compel responses to his initial

discovery requests on the same grounds that he asserted in support

of his motion for discovery under Rule 56(f). Accordingly,

neither the district court nor the court of appeals analyzed those

two motions separately. See Pet. App. 8a-10a, 27a-29a. Both courts

below denied petitioner’s motion to strike the agency declarations.

Id. at 10a-lla, 26a-27a. Of petitioner’s three procedural motions,

only his motion under Rule 56(f) is at issue in this Court. See

Pet. 7.

4 The district court also held that petitioner was not entitled to

a waiver of FOIA search fees. Pet. App. 29a-30a. The court of

appeals reversed that holding in part, id. at lla-16a, and it is no

longer at issue.

5

records in order to avoid disclosing them to him.” Jd. at

Ya-10a. It found itself, however, “faced with a complete

lack of tangible proof of [that] allegation|].” bid. The

court explained that “[petitioner] does not identify, by

name, title or otherwise, any of the individuals he

interviewed, nor does he point to any of the published

sources on which he supposedly relies.” Jbid. The court

“sympathized” with petitioner’s asserted wish not to

reveal confidential sources, but it determined that

“something more than [petitioner’s] bare allegations

[was] needed.” Jbid. The court concluded that “[ without

factual support, [petitioner’s] allegations are grounded in

mere speculation, and the district court therefore did not

abuse its discretion in denying him discovery.” bid.

ARGUMENT

The court of appeals correctly applied well-settled

legal principles, equally applicable to FOIA and other

civil litigation, in upholding the denial of petitioner's

Rule 56(f) motion and the award of summary judgment

for the government. As petitioner concedes (Pet. 9), the

court of appeals’ decision does not conflict with any

decision of this Court or that of any other court of

appeals. Further review therefore is not warranted.

1. The court of appeals correctly stated the standards

governing the government’s motion for summary

judgment. The court stated that “[i]n order to prevail on

a motion for summary judgment in a FOIA case, the

defending agency has the burden of showing that its

search was adequate and that any withheld documents

fall within an exemption of the FOIA.” Pet. App. 8a

(citing 5 U.S.C. 552(a)(4)(B) and EPA v. Mink, 410 U.S.

75, 79 (1973)). The court further stated that the agency

may meet that burden by submitting affidavits or

declarations “indicating that [it] has conducted a

6

thorough search and giving reasonably detailed explana-

tions why any withheld documents fall within an exemp-

tion.” Pet. App. 8a. Because the agency’s affidavits “are

‘accorded a presumption of good faith,’” the court said,

discovery regarding the agency’s search and the claimed

exemptions “generally is unnecessary if the agency’s

submissions are adequate on their face.” Jbid. (quoting

Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.

Cir. 1991)). The court noted, however, that the plaintiff

may rebut that presumption by making “a showing of bad

faith on the part of the agency sufficient to impugn” the

integrity of the agency’s submissions, or by providing

“some tangible evidence that an exemption claimed by

the agency should not apply or [that] summary judgment

is otherwise inappropriate.” Pet. App. 8a-9a.

Petitioner does not and cannot challenge the court of

appeals’ statement of the governing principles. Instead,

he argues (Pet. 10-11) that, in applying those principles

to the facts of this case, the court of appeals in effect

adopted a “rule” of deference to agency affidavits that is

“questionable” in light of FOIA’s objectives of openness

in government and the “imbalance” of information in

FOIA cases. Petitioner mischaracterizes the court of

appeals’ decision.

The court of appeals did not adopt a “rule” barring

discovery in FOIA cases. Rather, it articulated a

standard—that discovery “generally” is unnecessary in

FOIA cases “if” the agency’s declarations are adequate

on their face, Pet. App. 8a (emphasis added)—that calls

for case-by-case examination of the agency’s submission.

The court then correctly determined that the

declarations submitted by the Department in this case

were adequate on their face, because they were

“reasonably detailed,” they “reveal[ed] that each of the

[Department] subdivisions undertook a diligent search

SD

7

for documents responsive to [petitioner’s] requests,” and

they “describe[d] the documents or classes of documents

withheld and explainfed] why they fall within an

applicable exemption.” J/d. at 9a. In light of that

determination, the court of appeals properly held that the

Department had adequately supported its motion for

summary judgment.

The court of appeals did not hold that, in order to avoid

summary judgment, a FOIA plaintiff must provide

“‘tangible proof’ of governmental misconduct,” as

petitioner asserts (Pet. 13). Instead, the court said that,

“once the agency has satisfied its burden” on a summary

judgment motion, the party opposing the motion must

“provide some tangible evidence that an exemption

claimed by the agency should not apply or summary

judgment is otherwise inappropriate.” Pet. App. Sa-9a.

Thus, the court of appeals did not purport to limit the

means by which a FOIA plaintiff can avoid summary

judgment. It simply held that, in order to defeat a

properly supported motion for summary judgment, a

FOIA plaintiff must make the same showing as any other

non-moving party. See Lujan v. National Wildlife

Federation, 497 U.S. 871, 884-885 (1990); Celoter Corp. v.

Catrett, 477 U.S. 317, 322-323 (1986).

Petitioner suggests that a FOIA plaintiff should not

have to make the same showing that other civil litigants

must make to avoid summary judgment, because of the

“imbalance” of information in FOTA cases. Pet. 11. Any

such “imbalance,” however, is addressed by the FOIA

itself, which puts the burden on the agency to justify its

withholding of responsive documents. 5 U.S.C. 552(a)

(4)(B); EPA v. Mink, 410 U.S. at 79. The court of appeals

was cognizant of that burden and correctly held that the

government had met it. See Pet. App. &a.

8

2. Petitioner challenges the denial of his Rule 56(f)

motion on essentially the same ground that he chal-

lenges the award of summary judgment for the Depart-

ment. He contends that the court of appeals “improperly

truncate|d]” the application of Rule 56(f) by holding that

“an FOIA plaintiff cannot rely on Rule 56(f) in the ab-

sence of ‘tangible proof’ of governmental misconduct.”

Pet. 8, 138. Petitioner again mischaracterizes the court’s

holding.

The court of appeals emphasized that, in order to

prevail on a Rule 56(f) motion, a FOIA plaintiff need not

present evidence that would be admissible at trial. Pet.

App. 10a. The court correctly recognized, however, that

a Rule 56(f) motion must be supported by “something

more than * * * bare allegations.” Pet. App. 10a. That

is the same standard that courts apply outside of the

FOIA context. See, e.g., Contemporary Mission, Ine. v.

United States Postal Serv., 648 F.2d 97, 107 (2d Cir.

1981); Cramer v. Devon Group, Inc., 774 F. Supp. 176, 180

(S.D.N.Y. 1991); see also Applegate v. Top Assocs., Inc.,

425 F.2d 92, 96 (2d Cir. 1970). Indeed, it is the same

standard that petitioner endorses. Pet. 15 (“The normal

Rule 56(f) test * * * makles] clear that ‘vague

assertions’ regarding facts to be discovered are insuffi-

cient, alone, to warrant discovery.”).

Thus, the court of appeals did not hold that a FOIA

plaintiff is required in every case to support a Rule 56(f)

motion by presenting evidence of governmental

wrongdoing. The court cited the lack of such evidence

here only because petitioner based his Rule 56(f) motion

on his “conten[tion] that the DOJ ha[d] concealed the

existence of records and mischaracterized other records

in order to avoid disclosing them.” Pet. App. 9a-10a.

Thus, it was petitioner who raised the issue of agency

misconduct as a basis for discovery under Rule 56(f).

9

The court of appeals corre*tly determined that there was

a “complete lack of tangible proof” of such misconduct,

and that petitioner’s “bare allegations” were inadequate.

Pet. App. 10a.’

Nor are the courts of appeals “betuddled” by the role of

Rule 56(f) in FOIA litigation, as petitioner asserts (Pet.

15). The single decision that petitioner cites in support

of that assertion, Church of Scientology v. IRS, 991 F.2d

560 (9th Cir. 1993), manifests no division or confusion

among the courts of appeals on that score. Instead, the

court in Church of Scientology simply declined to make a

“broad statement” about “the general discretion of a

district court to grant or deny a Rule 56(f) motion,”

opting instead for a careful and fact-specific resolution.

Id. at 563. Moreover, because the court of appeals in that

ease held that the FOIA plaintiff before it was entitled to

conduct discovery, the decision shows that courts permit

discovery in FOIA cases if the plaintiff makes a suffi-

cient factual showing to justify it.

5. Finally, petitioner argues (Pet. 16-20) that the

courts below erred in holding that he failed to satisfy the

standard for conducting discovery under Rule 56(f).

Petitioner concedes (Pet. 19), however, that the district

court’s ruling on that issue was subject to review enly

* The Seventh Circuit, sitting en banc, held in a similar context

that a district court did not abuse its discretion by refusing to

conduct an in camera review of requested documents based solely

on an assertion of government bad faith. If district courts were

required to conduct in camera review based solely on such an

assertion, the court reasoned, they “would See] obligated” to do so

“in nearly every FOIA case, because nearly every FOIA request

would be accompanied by the talismanic buzz words ‘Government

wrongdoing.’” Silets v. Department of Justice, 945 F.2d 227, 231-

232 (7th Cir. 1991) (en banc), cert. denied, 112 S. Ct. 2991 (1992).

10

for an abuse of discretion.® The court of appeals properly

held that, under the circumstances of this case, the

district court acted within its discretion in denying

petitioner’s Rule 56(f) motion. Pet. App. 10a. That

factbound holding does not merit further review. See,

e.g., Goodman v. Lukens Steel Co., 482 U.S. 656, 665

(1987); Tiffany Fine Arts, Inc. v. United States, 469 U.S.

310, 317 n.5 (1985).

As both lower courts found, petitioner relied on “mere

speculation” in seeking discovery under Rule 56(f). Pet.

App. 10a; see id. at 28a. For example, he asserted in the

affidavit supporting his Rule 56(f) motion that the

Department had withheld certain categories of respon-

sive documents. C.A. App. 200-202. However, many

documents in those categories were in fact disclosed to

him, as the Department’s declarations made clear.

Compare, e.g., id. at 201 (assertion in petitioner’s affi-

davit that Department had withheld material supplied to

Senate Judiciary Committee) with id. at 31 (declaration

describing such material). Although petitioner also

purportedly described specific documents that he

believed had been withheld, see id. at 203-205, he did not

show that the Department was in possession of those

® District courts are accorded discretion by the plain terms of

Fed. R. Civ. P. 56(f), which provides:

Should it appear from the affidavits of a party opposing the

motion [for summary judgment] that the party cannot for

reasons stated present by affidavit facts essential to justify the

party’s opposition, the court may refuse the application for

judgment or may order a continuance to permit affidavits to

be obtained or depositions to be taken or discovery to be had or

may make such other order as is just.

11

documents but failed either to make them available to

him or to explain why they had not been made available.’

Moreover, even if petitioner had shown that there were

certain responsive documents in the Department’s files

that hau not been made available to him or described in

the agency’s declarations, that showing would not have

precluded summary judgment. In reviewing an agency’s

declaration in support of summary judgment, the rele-

vant question “is whether the search was reasonably

calculated to discover the requested documents, not

whether it actually uncovered every document extant.”

Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.

Cir. 1991); accord, e.g., In re Wade, 969 F.2d 241, 249 n.11

(7th Cir. 1992) (“The issue is not whether other

documents may exist, but rather whether the search for

undisclosed documents was adequate.”); see also Oglesby

v. Department of the Army, 920 F.2d 57, 67 n.13 (D.C.

Cir. 1990) (claim that other responsive documents “rast

exist” is “insufficient to raise a material question of fact

with respect to the adequacy of the agency’s search”);

Miller v. Department of State, 779 F.2d 1378, 1383 (Xth

Cir. 1985) (“the search need only be reasonable; it does

not have to be exhaustive”).

Petitioner asserts that it was a “gross miscarriage of

justice” for the courts below to deny him discovery

because “the sources of his information [were| * *

unwilling to provide on-the-record confirmation” of the

allegations in his Rule 56(f) affidavit. Pet. 17. The

* In this Court, petitioner asserts (Pet. 4 n.3, 17 n 15, 18 nts)

that he supplied evidence of improperly withheld documents by

“citling]” several books relating to the Department's role in the

process of nomination and confirmation of Supreme Court Justices.

None of those books, however, was cited in his Rule 56(f) affidavit

or in any other documents in the record before the lower courts.

12

premise of that assertion is incorrect. The courts below

did not require petitioner to disclose the identity of any

confidential sources. Indeed, the court of appeals

expressed sensitivity to petitioner’s wish to honor any

assurances of confidentiality he had made. Pet. App. 10a.

The court simply required “something more than his

bare allegations.” Jbid.

Petitioner could have supplied more than bare allega-

tions without compromising any confidential sources.

For example, he could have asked the district court for

leave to submit affidavits from his interviewees under

seal or pursuant to a protective order; he could have

reauested in camera review to test the validity of the

declarants’ statements: he could have sought appoint-

ment of a “special master” or a sampling of responsive

documents; or he could have submitted FOLA requests,

in the first instance. that identified with particularity

the documents he allegedly knew to exist. Petitioner did

none of those things. He cannot now complain that the

district court did not “explore less severe alternatives to

a summary judgment dismissal” (Pet. 20) that he (an

attorney himself) never suggested.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREWS. DAyYs. III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

LEONARD SCHAITMAN

ROBERT S. WHITMAN

7 Attorneys

AUGUST 1994