IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________________________ Nos. 94-5247, 94-5381 (Consolidated) [Page Proof Copy] ____________________________ COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY, Plaintiff-Appellee, v. UNITED STATES SECRET SERVICE, Defendant-Appellant. ____________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________ BRIEF FOR APPELLEE ____________________________RELEVANT STATUTORY PROVISIONS
The pertinent provisions of the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552, are set forth in an Addendum to the Brief for Appellant.
STATEMENT OF THE CASE
This is a FOIA case involving a controversial incident in which agents of the United States Secret Service ("Secret Service," "the agency," or "defendant") apparently persuaded private security guards to conduct a detention, interrogation and search of peaceably assembled individuals without benefit of probable cause or a judicial warrant. The record demonstrates that the Secret Service initially sought to conceal its involvement in the incident and subsequently revised certain material facts relevant to the incident and its processing of plaintiff's FOIA request.
After litigation of the merits, including the submission of four agency declarations (one of which was filed under seal and reviewed by the court in camera), the district court (Oberdorfer, D.J.) on July 1, 1994, flatly rejected the Secret Service's claims under FOIA Exemption 7(D) & (C) and held that the agency was entitled to withhold only a limited amount of information under Exemption 7(A). JA ___ [July 1 Mem.]. The Secret Service filed an untimely motion for reconsideration, which the court denied. JA ___ [Oct. 7 Mem. & Order]. These appeals followed.
On November 6, 1992, a group of young people gathered in the public food court at Pentagon City Mall in Arlington, Virginia, to socialize and discuss their common hobby -- computer technology. Most of the attendees were readers of 2600 Magazine, a quarterly journal devoted to computer and telecommunications issues. The gathering was a regular, monthly event promoted by the magazine. See "Hackers Allege Harassment at Mall," Washington Post, November 12, 1992 , JA ___ [1st Laska Dec. Ex. 5].
Shortly after the group had gathered, "they were surrounded by a few mall security guards and at least one agent from the Secret Service." Id. Officers of the Arlington County Police were also present. The security guards demanded that the group members produce identification and then compiled a list of names of those present. The personal belongings of several attendees were confiscated and the group was evicted from the mall. Id. Significantly for purposes of this appeal, the mall's security director subsequently acknowledged his staff's cooperation with the Secret Service in an interview with the news media. JA ___ [Pl. Cross-Mot. Ex. B].
Several days later, on November 10, 1992, plaintiff /1/ submitted a FOIA request to the Secret Service seeking agency records concerning the incident, "particularly ... information concerning the involvement of the Secret Service in the detention of the individuals and the confiscation of their property." JA ___ [1st Laska Dec., Ex. 1]. The agency initially asserted that it would "neither confirm nor deny the existence of investigatory information pertaining to the individuals" detained and identified during the incident unless plaintiff provided "properly notarized releases" from those individuals. Plaintiff immediately reiterated its interest in information concerning "the Secret Service's involvement in an incident that has been widely publicized in [the news] media." JA ___ [1st Laska Dec., Ex. 3].
Upon the agency's failure to timely produce responsive documents, plaintiff filed the instant suit on February 4, 1993. Through the litigation of the case, information about the Secret Service's involvement slowly came to light. Initially (on March 5, 1993), the agency produced several newspaper articles describing the incident, but withheld two records that, according to the agency, "were provided to the Secret Service by a confidential source, and each consists solely of information identifying individuals." JA ___ [1st Laska Dec.] Para. 10. The Secret Service asserted that these two documents -- apparently lists of names compiled by the mall security guards -- were exempt from disclosure under FOIA Exemptions 7(A), 7(C) and 7(D)./2/
On April 19, 1993, in support of its motion for summary judgment, defendant filed a sworn declaration asserting that only two agency records were responsive to plaintiff's request. JA ___ [1st Laska Dec.] Para. 10. The declaration merely identified the underlying agency inquiry as "a criminal investigation which was being conducted ... under the authority of Title 18, of the United States Code, Sections 1029, 1030(d), and 3056." JA ___ [1st Laska Dec.] Para. 13. The agency submission provided only generic assertions concerning the alleged "confidential" source of the information. JA __ [1st Laska Dec. Para.15(C)]. Significantly, the sworn declaration did not mention any "understanding" on the part of the source, nor did it contain any information specific to the particular source or the circumstances surrounding the particular investigation at issue in the case.
In response to the agency's submission, plaintiff filed a cross-motion for summary judgment on May 18, 1993. CR 7. Plaintiff initially asserted that the Secret Service had failed to establish the threshold "law enforcement purpose" required for invocation of FOIA Exemption 7./3/ Plaintiff also challenged the agency's contention that release of the withheld information would interfere with an ongoing investigation, reveal a confidential source, and invade personal privacy. In support of its privacy argument, plaintiff submitted an affidavit executed by counsel stating that a number of the individuals detained at the shopping mall sought plaintiff's assistance in securing the release of relevant Secret Service records. Counsel further represented that plaintiff had submitted a separate FOIA request to the agency on November 20, 1992, accompanied by privacy releases executed by eight of those individuals, and that the Secret Service had claimed that it possessed no information relating to those individuals. JA ___ [Sobel Aff.]./4/
Midway through the briefing of the parties' dispositive motions, on June 18, 1993, the agency submitted two additional declarations: a supplemental declaration executed by the agency's initial declarant, Melvin E. Laska ("2d Laska Dec."); and the "Public Declaration of William F. Burch" ("Burch Dec.") the Special Agent in Charge of the agency's Washington Field Office./5/ The new declarations were significant in several respects. First, they revealed the previously undisclosed existence of six additional documents responsive to plaintiff's FOIA request, initially overlooked due to "an administrative error." JA ___ [2d Laska Dec.] Para. 9; JA __ [Burch Dec.] Para. 10./6/ Second, the new declarations provided the first description of the investigation underlying the agency's collection of the withheld information. Finally, the submissions constituted the agency's attempt to meet the standard for "confidential source" protection announced by the Supreme Court several weeks earlier in Department of Justice v. Landano, 113 S.Ct. 2014 (1993).
The Burch declaration revealed that the Secret Service initiated an investigation after it had received "information from a business indicating that that business' PBX [public branch exchange] had been manipulated and that as a result the business had been the victim of long distance telephone toll fraud." JA ___ [Burch Dec.] Para. 22. It was, according to Mr. Burch, "through a follow-up investigation and an attempt to identify the individual(s) who had committed this fraud that the Secret Service came into possession of the information which is at issue in this case." JA ___ [Burch Dec.] Para. 24./7/
Most significantly for purposes of this appeal, the agency declarations sought to address the applicability of the Supreme Court's Landano decision to the withheld records. The assertions were largely generic. Mr. Laska stated that "[i]n the case of criminal investigations concerning computer fraud and related matters the Secret Service does not release the names or identities of those who provide information ... as the release of such information could result in harassment of those sources." JA ___ [2d Laska Dec.] Para. 51. Likewise, Mr. Burch asserted that "[d]ue to the nature of the investigative work conducted by the Secret Service, this agency must protect from exposure the sources which the Secret Service utilizes to gain information in the course of its criminal investigations." JA ___ [Burch Dec.] Para. 30.
In the only specific reference to the particular source at issue here, both declarants asserted that
JA ___ [2d Laska Dec.] Para. 49; JA ___ [Burch Dec.] Para. 28. Notwithstanding the declarants' assertion that the source had "reiterated" its "original position and understanding," this was the first agency reference to the source's alleged state of mind at the time the information was provided.
On July 1, 1994, the district court ruled on the parties' cross-motions for summary judgment. JA ___ [7/1/94 Order]. After reviewing four agency declarations -- including an in camera submission entered over plaintiff's objection (CR 18) -- the court concluded that the Secret Service had failed to meet its burden of demonstrating that all of the withheld material was exempt from disclosure./8/ The court concluded that the agency had established the Exemption 7 threshold (information compiled for a "law enforcement purpose"), JA ___ [July 1 Mem. at 3], but rejected the agency's contention that disclosure of the information "could reasonably be expected to disclose the identity of a confidential source," as required by Exemption 7(D). JA ___ - ___ [Id. at 4- 5]. Applying the standard recently announced in Landano, the district court held that
JA ___ [Id. at 5] (citation omitted).
The district court also rejected the agency's claim that disclosure of the withheld information "could reasonably be expected to constitute an unwarranted invasion of personal privacy," as required by Exemption 7(C). The court first noted that the cases cited by the Secret Service "generally involve persons whose connection with a criminal file could embarrass or endanger them -- for example, persons investigated but not charged in criminal matters." JA ___ [Id. at 3], citing Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856, 861-66 (D.C. Cir. 1981). Noting that the agency never "suggested that the meeting at issue here is the object of any criminal investigation" and that "[t]he incident occurred in plain view of the patrons of a busy shopping mall," the court held that
JA ___ [July 1 Mem. at 3]. To illustrate the logic of its conclusion, the court noted that "several participants in the meeting have executed privacy waivers in connection with a later FOIA request from defendant, which suggests that they do not perceive release of the material defendant is withholding as a threat to their privacy interests." Id./9/
On July 18, 1994, relying upon Fed. R. Civ. P. 59(e), the agency filed a motion for reconsideration of the district court's decision on the merits. CR 29./10/ That motion, however, was not served within ten days as required by the Rule. The agency subsequently attempted to re-cast its motion as one made under the provisions of Fed. R. Civ. P. 60(b)(1) or (b)(6). CR 34. By Memorandum and Order dated October 7, 1994, the district court denied the agency's reconsideration motion as untimely. JA ___ - ___ [Oct. 7 Mem. & Order].
Following the government's appeal of the relevant rulings, on December 16, 1994, the district court stayed its judgment pending the outcome of appellate review. CR 45.
The agency first presented two "generic circumstances" that purportedly met the standard of proof announced in Landano; "the general practice of the Secret Service in handling this sort of information" and "a concern for potential 'retaliation or harassment' of sources." The "general practice" rationale is merely a restatement of the presumption rejected in Landano. The retaliation claim falls far short of what the Supreme Court envisioned in Landano, where it discussed the expectation of confidentiality held by "witnesses to a gang-related murder." The Secret Service's attempt to equate such violent crimes to investigations of telephone toll fraud are unavailing.
The agency also asserted that it had contacted the source of the information after Landano was decided and that the source had "reiterated" its "original" understanding that its cooperation would be kept confidential. This was, in fact, the first time that the agency addressed the source's alleged state of mind at the time the information was obtained. If the source had, at the outset, articulated an expectation of confidentiality, this case would involve an express assurance of confidentiality -- a claim the agency has specifically waived. Furthermore, the apparent source of the information acknowledged its cooperation with the Secret Service in an interview with the news media. Under these circumstances, the district court correctly held that the agency's assertion was a "post hoc rationalization" belatedly put forward to come within the holding of Landano.
The public interest in disclosure, however, is substantial. The requested information concerns precisely the sort of agency activity that is central to the purposes of the FOIA, as the Supreme Court has held in Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). The incident at issue in this case was the subject of news media attention, and the general issue of improper Secret Service investigative activity has been addressed in other litigation and is clearly a matter of substantial public interest. The balance of interests in this case clearly weighs in favor of disclosure.
I. THE DISTRICT COURT WAS CLEARLY CORRECT IN ORDERING DISCLOSURE OF THE WITHHELD RECORDS UNDER THE FOIA.
This is a highly unusual FOIA case, albeit one that is relatively simple to decide. Indeed, the same facts that render this case sui generis also demonstrate the correctness of the district court's holding: the apparent deputization of private security guards to conduct searches and detentions; an alleged "confidential" source that acknowledged its cooperation to the news media; a belated agency representation concerning the source's expectation of confidentiality; and disingenuous "personal privacy" claims made on behalf of the very individuals the agency harassed because of their reading habits and lawful activities.
As we demonstrate below, the district court was clearly correct in rejecting the Secret Service's attempts to withhold the disputed records under FOIA Exemptions 7(D) and 7(C)./11/
Challenging the ruling below, the agency correctly notes that the Exemption 7(D) issue is "whether the government can demonstrate an 'implied' assurance of confidentiality in the furnishing of the information in question." Brief for Appellant at 21 (footnote omitted). Significantly, the agency has specifically disclaimed "an express assurance of confidentiality in this case." Id., n. 8.
Having correctly framed the issue, the agency proceeds to fail (as it did below) in its attempt to make the requisite showing. Indeed, after taking four bites at the apple in the district court through the submission of various declarations, the Secret Service never came close to meeting the "confidentiality" standard announced in Landano. As the district court held,"[a]t no time has defendant offered any evidence of an express or implied promise of confidentiality at the time the source provided the information." JA ___ [July 1 Mem. at 5]. Indeed, in the face of facts specific to this case suggesting that the source had no expectation of confidentiality, the agency merely presented two generic factors and, as the district court found, a "post hoc rationalization." Id.
As it recognized in Steinberg, this Court had previously held the presumptive view of confidentiality rejected in Landano. 23 F.3d at 550 (citing Dow Jones & Co. v. Department of Justice, 917 F.2d 571 (D.C. Cir. 1990)). See also Schmerler v. Federal Bureau of Investigation, 900 F.2d 333 (D.C. Cir. 1990); Keys v. Department of Justice, 830 F.2d 337 (D.C. Cir. 1987). The crux of the agency's shortcoming in this case is that it chose to rely upon the least stringent Exemption 7(D) standard articulated by the courts at the time that it obtained the disputed information.
The agency candidly states that "[a]dmittedly, when the government made its first submission below, it relied upon the mere fact of source cooperation in a criminal investigation under this Court's pre-Landano precedents." Brief for Appellant at 25 (citations omitted). The obvious, though unstated, corollary of that admission is that the Secret Service also "relied upon the mere fact of source cooperation" when it received information from the source in November 1992.
Notwithstanding the agency's assertion here, such reliance was not necessarily reasonable at that time. The legal issue was unsettled, with some courts having rejected the presumption of confidentiality. See, e.g., Weiner v. Federal Bureau of Investigation, 943 F.2d 972 (9th Cir. 1991), cert. denied, 112 S.Ct. 3013 (1992); Lame v. Department of Justice, 654 F.2d 917 (3d Cir. 1981); see also Landano, 113 S.Ct. at 2019 (noting "conflict among the Courts of Appeals over the nature of the [government's] evidentiary burden under Exemption 7(D)"). Indeed, the Supreme Court had already granted certiorari in Landano at the time of the incident at issue here. 113 S.Ct. 51 (1992) (cert. granted, October 5, 1992)./13/
The agency's reliance upon a presumption of source confidentiality at the time it obtained the information required it to fit a square peg into a round hole after the Supreme Court ruled in Landano. Not surprisingly, that effort was unsuccessful. We address in turn the shortcomings of the agency's "generic" assertions and its claim that the source belatedly articulated an expectation of confidentiality.
Id., citing JA ___ [Burch Pub. Dec. Para. 30] (emphasis added).
The proffered rationale falls far short of the type of showing Landano requires. The agency's reliance upon the manner in which it "routinely" handles source information adds nothing to the resolution of the issue and, indeed, is almost identical to the very presumption the Supreme Court rejected. The core of the holding in Landano was that "it is unreasonable to infer that all FBI criminal investigative sources are confidential," 113 S.Ct. at 2023, but that "[m]ore narrowly defined circumstances, however, can provide a basis for inferring confidentiality," id. at 2024. The agency's discussion of "routine" procedures cannot fairly be characterized as "narrowly defined."
Attempting to give its showing an unwarranted veneer, the Secret Service asserts that "the Supreme Court explained that the manner by which the agency treats the information may be sufficient to 'justify the inference' of confidentiality ...." Brief for Appellant at 25. The agency proceeds to quote selectively from Landano, the complete and pertinent portion of which makes plain that the Court is discussing the confidentiality of paid informants:
113 S.Ct. at 2023 (citations omitted).
Here, of course, there has never been any suggestion that the source was a paid informant. Indeed, as we discuss, infra, there was nothing stealthy about the circumstances surrounding the collection of the information at issue in this case.
The agency's reference to Landano in this context is unavailing. Id. at 25 ("the Supreme Court specifically pointed to the potential for harassment of sources as an example of the 'generic' circumstances contemplated by its decision"). Again, reference to the relevant language in Landano is instructive:
113 S.Ct. at 2023 (emphasis added). See also Massey v. Federal Bureau of Investigation, 3 F.3d 620, 623 (2d Cir. 1993) (Supreme Court noted in Landano that "there may be certain 'generic circumstances' under which confidentiality can be inferred, for example ... where an informant provides information concerning offenses such as gang-related shootings") (citations omitted).
The Secret Service would have this Court read the very meaning out of Landano's discussion of retaliation and the "character of the crime at issue." If the Supreme Court's analysis means anything, it is that a "gang-related murder" should not be equated with "the commission of several tens of thousands of dollars of telephone toll fraud," Brief for Appellant at 26. Were this Court to accept the agency's contention, it would be difficult to conceive of a case in which the "character of the crime" would not lead to an inference of confidentiality. Such a result would, in effect, restore the very presumption the Supreme Court has rejected./14/
JA ___ [2d Laska Dec. Para. 49]; JA ___ [Burch Dec. Para. 28].
As noted previously, despite the declarants' assertion that the source had "recently ... reiterated" its "original position and understanding," this was the first time the agency addressed the source's alleged state of mind. The district court properly held that
JA ___ [July 1 Mem. at 5] (emphasis added).
As the district court obviously recognized, the agency's claim raised several troubling questions. First, and most apparent, was the missing element of the purported "reiteration" -- the agency never claimed (either before or after Landano) that the source had previously expressed any expectation of confidentiality. If, as the agency implied but never demonstrated, the source had expressed such an understanding at the time the information was provided, logic suggests that the agency would have introduced that highly probative fact before Landano.
Even assuming that, pre-Landano, the agency had some reasonable justification for failing to mention the source's obliquely alleged contemporaneous statement concerning its expectation of confidentiality,/15/ its subsequent failure to cite such a statement is unfathomable. As noted, the Secret Service has specifically disclaimed reliance upon an express assurance of confidentiality in this case. Brief for Appellant at 21, n.8. Nonetheless, the "reiterated" understanding upon which the agency relies would, if articulated contemporaneously with the provision of the disputed information, demonstrate such an express assurance. Indeed, the agency's position on this issue, as reflected in its brief, is somewhat muddled. The Secret Service argues that
Brief for Appellant at 23-24 (emphasis in original; citations omitted).
The portion of Landano the agency cites clearly refers to "explicit promises of confidentiality to particular sources" and notes that "[t]hat sort of proof apparently often is not possible." 113 S.Ct. at 2020. If, as the agency now contends, it has "presented such evidence" in this case, the agency either has waived an airtight claim of express confidentiality or has fundamentally misunderstood Landano.
Finally, the record below contained strong evidence suggesting that the apparent source of the disputed information -- the shopping mall and its security personnel -- in fact had no expectation of confidentiality. In an interview with Communications Daily, Allan Johnson, director of security for the Pentagon City Mall, "said his staff was working under [the] direction of [the] Secret Service." JA ___ [Comm. Daily 11/10/92 at 2]. The publication quoted Johnson as acknowledging that "[t]he Secret Service, FBI, everybody was here," and that "[t]he Secret Service, the FBI, they're the ones that ramrodded this whole thing." Id. These statements, coupled with the fact that, as the district court found, the incident "occurred in plain view of the patrons of a busy shopping mall," JA ___ [July 1 Mem. at 4], strongly militate against an inference of confidentiality. Cf., Landano, 113 S.Ct. at 2023 (discussing FBI contact with informants "only at locations and under circumstances which assure the contact will not be noticed").
In sum, the district court correctly held that the Secret Service failed to meet its burden of establishing an inference of source confidentiality as required by Landano.
The unique circumstances of this case also cut against the agency's invocation of Exemption 7(C). The district court correctly held that "the mere fact that defendant has maintained materials relating to the [Pentagon City Mall] incident in connection with a criminal investigation does not mark participants in the meeting with the 'stigma' of being associated with a criminal investigation." JA ___ [July 1 Mem. at 3]. The court noted that "[t]he incident occurred in plain view of the patrons of a busy shopping mall," and that the execution of privacy waivers by several of the participants suggests that individuals associated with the incident "do not perceive release of the material defendant is withholding as a threat to their privacy interests." Id.
In analyzing the Exemption 7(C) issue, the Court must balance the privacy interests involved in the withheld information against the public interest in disclosure. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762 (1989); see also Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856, 862 (D.C. Cir. 1981). As the Supreme Court explained in Reporters Committee,
Id. at 773, quoting Department of Air Force v. Rose, 425 U.S. 352, 360-361 (1976) (other citations omitted). Given the absence of any threat to personal privacy in this case and the substantial public interest in release of the disputed material, Exemption 7(C) is no bar to disclosure./16/
The question of "stigma" is central to an evaluation of the privacy interests at stake in a particular case. As this Court noted in McCutchen v. Department of Health and Human Services, 30 F.3d 183, 187 (D.C. Cir. 1994), personal privacy interests are implicated when "the stigma that hangs over the targets of law enforcement investigations [is] on the line." See also Bast v. Department of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981) (exemption "recognizes the stigma potentially associated with law enforcement investigations"). Likewise, in Dunkelberger v. Department of Justice, 906 F.2d 779 (D.C. Cir. 1990), the Court emphasized that "Exemption 7(C) takes particular note of the 'strong interest' of individuals, whether they be suspects, witnesses, or investigators, 'in not being associated unwarrantedly with alleged criminal activity.'" Id. at 781, quoting Stern v. Federal Bureau of Investigation, 737 F.2d 84, 91- 92 (D.C. Cir. 1984). See also Dunkelberger, 906 F.2d at 781-782 (individual's "interest in not being associated unwarrantedly with the misconduct alleged").
As the district court found, there is simply no "stigma" involved in this case. The record amply demonstrates that the individuals caught up in the Secret Service's indirect collection of names were engaged in wholly lawful activity and were peaceably assembled in a public place. The mere fact that the agency decided that those individuals might be of investigative "interest" solely because they "evidenced an interest in the technical intricacies of the telephone system" by virtue of their reading habits and attendance at a public meeting, Brief for Appellant at 26, n.10, does not establish the sort of "stigma" the cited cases envision. Indeed, in a very real sense these individuals were the victims of an investigation gone awry, not its targets./17/
The agency makes much of the district court's supposed reliance upon the fact that "several participants in the meeting have executed privacy waivers in connection with a later FOIA request ...." Brief for Appellant at 37, quoting JA ___ [July 1 Mem. at 4]. Again, the agency misapprehends the court's analysis. The court merely took note of the waivers and observed that the individuals' desire to see the information disclosed "suggests that they do not perceive release of the material defendant is withholding as a threat to their privacy interests." JA ___ [July 1 Mem. at 4]. This was but one additional factor that indicated a lack of "stigma" associated with the withheld material. The agency is simply wrong when it characterizes the district court as having "conclud[ed] that the privacy waivers ... required rejection of the government's Exemption 7(C) claims." Brief for Appellant at 41.
The agency's claim is remarkable given that the Secret Service itself saw fit to collect and maintain "several responsive newspaper clippings" concerning the event, which it eventually released pursuant to plaintiff's FOIA request. Brief for Appellant at 5, citing JA ___-___ [1st Laska Dec. Ex. 5]. One of those articles, which the district court cited, appeared in the Washington Post. See JA ___ [July 1 Mem. at 1, n.1]. It is difficult to imagine a more probative indication of public interest in governmental activity.
The investigative activities of the Secret Service have also been the subject of civil litigation in which the agency's conduct has been judicially criticized. Thus, in Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F.Supp. 432, 444 (W.D. Tex. 1993), affirmed, 36 F.3d 457 (5th Cir. 1994), the court found that
The information at issue in this case clearly sheds light on the manner in which the Secret Service conducts its investigation in furtherance of its statutory authority. Given the minimal privacy interests at stake and the substantial public interest in this information, the district court was clearly correct in holding that the agency failed to meet its burden under FOIA Exemption 7(C).
II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE AGENCY'S MOTION FOR RECONSIDERATION
Acknowledging that its motion for reconsideration was untimely under the provisions of Fed. R. Civ. P. 59(e),/18/ Brief for Appellant at 42, the agency nonetheless asserts that the district court somehow abused its discretion in declining to entertain the motion under Fed. R. Civ. P. 60(b). The agency's position lacks merit and is contrary to the orderly disposition of actions envisioned by the Federal Rules./19/
citing Browder v. Director, 434 U.S. 257 (1978) (other citations omitted).
In this case, the agency apparently acknowledges that no "error of law" is at issue, as its contention is that the district court abused its discretion. Neither the facts nor the law support that contention.
As the district court properly held, the agency's belated reliance upon Rule 60(b) was misplaced. The Rule provides, in pertinent part, that
Defendant's motion plainly stated that it was made "pursuant to Fed. R. Civ. P. 59(e) ... on the basis that [the judgment] contains both errors of fact and law." CR 29. As this Court has observed, "allowing substantive modifications to be made under Rule 60(b) eviscerates the 10-day time limitation imposed by Rule 59(e) on motions to 'alter or amend the judgment.'" Center for Nuclear Responsibility, 781 F.2d at 939. The agency's belated attempt to recast its motion under Rule 60(b) is unavailing. "'Any motion that draws into question the correctness of the judgment is functionally a motion under Civil Rule 59(e), whatever its label.'" St. Mary's Hospital Medical Center v. Heckler, 753 F.2d 1362, 1365 (7th Cir. 1985) (citation omitted).
Defendant asks this Court to ignore the time limit imposed by Rule 59(e) and to treat Rules 59(e) and 60(b) as interchangeable vehicles for reconsideration of a final judgment. If, as the agency suggests, a motion styled as one under Rule 59(e) can be simply converted to one under Rule 60(b) when it is served more than ten days after entry of judgment, Rule 59(e) is a nullity./20/
Significantly, this Court has never held that alleged errors in legal reasoning can be raised under Rule 60(b) absent an intervening change in the law. In Center for Nuclear Responsibility, the Court noted that the circuits have split on the issue. Surveying the caselaw, the Court assessed the competing rationales and, as previously noted, observed that, inter alia, "allowing substantive modifications to be made under Rule 60(b) eviscerates the 10-day time limitation imposed by Rule 59(e) on motions to 'alter or amend the judgment.'" 781 F.2d at 939. Such considerations are clearly relevant here. The Court further noted that
Id. (footnote omitted).
The Court then turned to an assessment of the authority permitting the use of the Rule to address claims of substantive error and observed that
Id. (emphasis added; footnote and citations omitted).
The Court next discussed its earlier opinion in D.C. Federation of Civic Associations v. Volpe, 520 F.2d 451 (D.C. Cir. 1975), where the Court held that the district court should, under Rule 60(b), "reconsider an order which was inconsistent with an intervening decision of this Court." 520 F.2d at 453. In Center for Nuclear Responsibility, the Court reiterated that Volpe "involved the unique situation where the controlling law of the circuit had changed between the time of the judgment and the time of the motion." 781 F.2d at 940 (emphasis added)./22/
While this Court found it unnecessary to define the scope of Rule 60(b) in Center for Nuclear Responsibility, the decision can fairly be read as disfavoring the use of the rule as a substitute for Rule 59(e).
Finally, plaintiff notes the language of this Court's opinion in Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1990): "Rule 60(b) cannot ... be employed simply to rescue a litigant from strategic choices that later turn out to be improvident." (citations omitted). Cognizant that this language strongly undercuts its position, the agency asserts that "no such 'strategic choices' are involved here." Brief for Appellant at 46, n.20. The agency proceeds to discuss its failure to timely serve its Rule 59(e) motion, but does not address its failure to satisfy the evidentiary requirements of Landano.
Good Luck Nursing Home addresses this precise situation, holding that "a party that has stipulated to certain facts or has not presented known facts helpful to its cause when it had the chance cannot ordinarily avail itself on rule 60(b) after an adverse judgment has been handed down." 636 F. 2d at 577 (emphasis added; citations omitted). The presentation of such facts post-judgment, through the proffer of its second in camera declaration, is apparently what the agency seeks here./23/
In sum, the district court acted well within its discretion in denying the agency's motion for reconsideration.
For the foregoing reasons, the judgment of the district court should be affirmed.
Respectfully Submitted, /sig/ _________________________________ DAVID L. SOBEL MARC ROTENBERG Electronic Privacy Information Center 666 Pennsylvania Ave., S.E. Suite 301 Washington, DC 20003 (202) 544-9240 Counsel for AppelleeJune 2, 1995
1 Plaintiff Computer Professionals for Social Responsibility ("CPSR") is a non-profit membership organization, incorporated in the state of California. CPSR's membership includes a Nobel Laureate and four recipients of the Turing Award, the highest honor in computer science. CPSR's activities include the review of federal computing policies to determine their possible impact on civil liberties interests. Among its other activities, CPSR has prepared reports and presented testimony on computer technology issues at the request of congressional committees. In pursuit of its mission, CPSR has periodically submitted FOIA requests to the Secret Service seeking information concerning the agency's exercise of its jurisdiction to investigate computer crime. JA ___ [Compl. ¦ 3].
2 In its brief, the Secret Service reveals that the underlying law enforcement investigation was closed on March 14, 1995. As such, "the government no longer intends to assert Exemption 7(A) in this case." Brief for Appellant at 13-14. The exemptions remaining at issue are 7(C) (personal privacy) and 7(D) (confidential source material).
3 Citing Keys v. Department of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987), plaintiff argued that an agency must demonstrate a nexus "between [the relevant] activity" and its "law enforcement duties." Plaintiff noted that this nexus requirement ensures that the agency was not "merely engaging in a general monitoring of private individuals' activities." Pratt v. Webster, 673 F.2d 408, 420 (D.C. Cir. 1982). See also King v. Department of Justice, 830 F. 2d 210, 230 (D.C. Cir. 1987) (court not required "to sanction agency claims that are pretextual or otherwise strain credulity"); Shaw v. Federal Bureau of Investigation, 749 F.2d 58, 63 (D.C. Cir. 1984) ("mere existence of a plausible criminal investigatory reason to investigate would not protect the files of an inquiry explicitly conducted ... for purposes of harassment").
4 The status of information concerning the eight individuals who executed privacy waivers is one of several issues on which the agency's position is contradictory. In his second declaration, Secret Service FOIA Officer Laska asserted that the information withheld from plaintiff on privacy grounds "is not identifiable information concerning any of the individuals who submitted the releases to the Secret Service." JA ___ [2d Laska Dec. ¦ 39]. Contrary to that unequivocal assertion, the agency now reveals in its brief that "a small portion of one of the categories of withheld information is identifiable to an individual who might be one of those for whom plaintiff has submitted a privacy waiver." Brief for Appellant at 41 (citation omitted; emphasis in original).
5 On August 4, 1993, plaintiff filed a supplemental summary judgment memorandum, in which plaintiff addressed the contents of the two new declarations. Nine days later, on August 13, 1993, the Secret Service noticed the filing under seal of the fourth agency affidavit -- an in camera declaration executed by Mr. Burch. CR 26.
6 Plaintiff argued below that the belated acknowledgment of six agency records concerning the incident at the Pentagon City Mall lent additional credence to plaintiff's suggestion that the Secret Service had sought to conceal its involvement in a highly questionable "investigatory" activity.
7 With the filing of the government's brief in this appeal, the true circumstances surrounding the shopping mall incident have finally come to light. The agency observes that 2600 Magazine "apparently includes a variety of technical information about the telephone system," Brief for Appellant at 4 n.2, and asserts that "[o]bviously, a meeting of individuals 'affiliated with [the publication] would be of interest to [a toll fraud] investigation since those individuals have, by their conduct, evidenced an interest in the technical intricacies of the telephone system." Id. at 26 n.10 (citations omitted). The agency has not yet explained why, if the investigative activity was appropriate, it was not openly conducted by the agency itself rather than private mall security guards. Under the rationale offered by the Secret Service, it is far from clear that a federal law enforcement agency could have lawfully obtained the names of these individuals in a more direct and identifiable manner.
8 The court first denied plaintiff's motion to strike the in camera Burch declaration, holding that such a submission was "absolutely necessary" to resolve the case. JA ___ [July 1 Mem. at 2], citing Yeager v. Drug Enforcement Administration, 678 F.2d 315, 324-25 (D.C. Cir. 1982).
9 The court also held that the Secret Service was entitled to withhold only three specific categories of information under Exemption 7(A): information "identifying the individual(s) under investigation and stating that they are under investigation"; information "identifying any witness(es) or informant(s) of the activity under criminal investigation and stating that they are witnesses or informants"; and information "revealing the particular strategy or parameters of the investigation ...." JA ___ - ___ [July 1 Mem. 6-7]. Because the underlying investigation has been closed, the government "no longer intends to assert Exemption 7(A) in this case." Brief for Appellant at 14, citing Mapother v. Department of Justice, 3 F.2d 1533 (D.C. Cir. 1993).
10 Defendant's motion for reconsideration was accompanied by the fifth agency affidavit proffered in this case (and the second filed under seal) -- the in camera declaration of James P. O'Neill, Mr. Laska's successor as the Secret Service's FOIA Officer.
11 We address the two exemptions in the order employed by the agency. See Brief for Appellant at 19, 30.
12 Curiously, the agency fails to mention this Court's above- quoted characterization of Landano, which does not fully comport with the agency's own reading of the decision. The agency does, however, cite Steinberg in its discussion of the applicable standard of review, Brief for Appellant at 18.
13 Supreme Court decisions, of course, have retroactive effect unless the Court expressly provides for "prospective application." See, e.g., Stovall v. Denno, 388 U.S. 293 (1967). In Stovall, which broke new ground on the exclusionary rule, the Court noted that "[l]aw enforcement authorities relied on [the] virtually unanimous weight of authority, now no longer valid," and expressly held that the newly announced rules "should not be made retroactive." Id. at 300. In Landano, the Court was aware that several circuits had adopted a "presumption" of source confidentiality, and that law enforcement agencies had relied upon that authority (as the FBI had in that case). The Court nonetheless declined to give its decision only prospective application.
14 The district court clearly took the agency's retaliation claim into account, and rejected it. In discussing Landano, the court noted that the Supreme Court "held that exemption 7(D) only applies where there is an actual promise of confidentiality, or circumstances from which such a promise may be inferred -- for example, a type of crime that makes recriminations against sources likely." JA ___ [July 1 Mem. at 5]. The district court was fully apprised of the "type of crime" at issue in this case, noting that the agency's "public declarations specify the nature of the underlying criminal investigation, and its in camera submission discusses that investigation with even greater specificity." JA ___ [July 1 Mem. at 3].
15 The best justification the agency can muster for its failure to mention "the source's position" earlier in the litigation is the rather anemic assertion that "[t]his was not a new fabrication (as the district court's characterization impliedly suggests) but rather documentation of a set of circumstances which had previously existed but which had not required documentation under prior law." Brief for Appellant at 29. The agency still has not presented any evidence to support its assertion that the source communicated an understanding of confidentiality at the time the information was provided.
16 Plaintiff does not minimize the importance of personal privacy in appropriate cases. Indeed, plaintiff has participated as amicus curiae in several significant cases involving privacy issues, in support of personal privacy interests. See, e.g., Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993); State ex rel. Beacon Journal Publishing Co. v. City of Akron, 70 Ohio St. 3d, 640 N.E.2d 164 (1994). In addition, plaintiff co-sponsors the Electronic Privacy Information Center, an organization dedicated to the promotion and protection of personal privacy in the electronic age. See, Wired, June 1995 at 41.
17 Given the unusual circumstances surrounding this case, the agency's reliance upon Safecard Services, Inc. v. Securities and Exchange Commission, 926 F.2d 1197 (D.C. Cir. 1991), is wholly misplaced. See Brief for Appellant at 36. In that case, the Court held that
Here, the circumstances surrounding the collection of the individuals' names raise substantial questions concerning the legality of the agency's actions. The facts suggest that the Secret Service engaged the assistance of private security personnel to accomplish what it could not, under color of federal law, accomplish itself -- the detention and search of law-abiding citizens without probable cause or the presentation of a judicial warrant. As we discuss, infra, these circumstances also weigh heavily on the "public interest" side of the Exemption 7(C) analysis and favor disclosure.
18 Fed. R. Civ. P. 59(e) provides that "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of judgment." (emphasis added). "The timeliness of a motion to alter or amend a judgment is determined by the date it is served, not by the date it is filed." Rivera v. M/T Fossarina, 840 F.2d 152, 154 (1st Cir. 1988) (emphasis in original; citations omitted). Defendant filed, but did not serve, its motion within the requisite time period.
19 The nature of the relief the agency seeks with respect to the issue of reconsideration is not entirely clear. Should this Court hold that the district court erred on the FOIA merits, it would be unnecessary to reach this procedural issue. Conversely, if the Court affirms the district court on the merits, a remand for reconsideration below would be absurd. In the district court, and now here, defendant has used the reconsideration issue in an attempt to introduce evidence proffered after the entry of judgment. As we discuss infra, defendant has never asserted that its motion was proper under Rule 60(b)(2), which is the appropriate vehicle for the post-judgment introduction of new evidence.
The agency's most likely motivation is to have this Court accept its invitation to review the post-judgment in camera declaration it proffered in support of its untimely motion for reconsideration. See Brief for Appellant at 47, n.21. As we discuss, infra, this Court disfavors the use of Rule 60(b) to supplement the record after the entry of judgment.
20 A motion under Rule 59(e) tolls the time for appeal under F.R.A.P. 4(a), while a motion under Rule 60(b) does not. Center for Nuclear Responsibility, 781 F.2d at 939. As such, the approach the agency suggests would wreak havoc upon the appeals process. See generally, id. at 942 ("In a very real sense, the rules are the tools of the trade. Allowing [parties] to evade compliance with these rules blunts the tools fashioned to govern procedure in our courts ... and could produce mischievous results in the long run") (citation omitted).
21 See also J. Moore & J. Lucas, 6A Moore's Federal Practice, ¦ 59.17 at 316-317 (2d ed. 1994):
22 The agency describes Volpe as merely "involving a change in law," Brief for Appellant at 43, and then maintains that this case involves "an intervening change in law," id. at 45. The agency's attempt to bring this case within the Volpe exception is unavailing -- unlike here, in Volpe "the controlling law of the circuit had changed between the time of the judgment and the time of the motion." In this case, the district court ruled after Landano announced a change in the law and the agency was merely unhappy with the outcome.
23 The agency did not assert below that its motion was proper under Rule 60(b)(2), which provides relief from a final judgment on the basis of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial ..." It is thus apparent that the supporting material proffered by the agency cannot be characterized as "newly discovered," and that the Rules therefore provide no mechanism whereby the agency could properly enter the disputed material into the record subsequent to the entry of judgment.