Summers v. Department of Justice

140 F.3d 1077, 329 U.S. App. D.C. 358, 1998 U.S. App. LEXIS 7515, 1998 WL 176714
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 17, 1998
Docket97-5002
StatusPublished
Cited by270 cases

This text of 140 F.3d 1077 (Summers v. Department of Justice) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Summers v. Department of Justice, 140 F.3d 1077, 329 U.S. App. D.C. 358, 1998 U.S. App. LEXIS 7515, 1998 WL 176714 (D.C. Cir. 1998).

Opinions

[1078]*1078Opinion for the court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge SILBERMAN.

Concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

SENTELLE, Circuit Judge:

In this case arising under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1997), author Anthony Summers seeks to compel release of the official and confidential records of former FBI Director J. Edgar Hoover. Summers and the government filed. cross-motions for summary judgment on the issue of Summers’s entitlement to disputed documents. The district court granted the motion of the government and denied that of the plaintiff in a summary order without explanation. Although we review grants of summary judgment de novo, and the law does not require district judges to enter findings of fact or conclusions of law in the grant of such motions, because of the unique nature of FOIA litigation our precedents under that statute permit remand for the development of an adequate explanation when we find an abuse of discretion in the failure of the district court to provide one. As this is such a case, we remand for further proceedings.

I. Background

J. Edgar Hoover maintained an extensive array of FBI files in his office at FBI Headquarters. These documents—the so-called “official and confidential” files—include FBI files that Hoover had charged out of the FBI’s central records system; Hoover’s official and personal correspondence; as well as various FBI memoranda. In December of 1986, Anthony Summers, appellant here, filed a FOIA request with the FBI seeking release of Hoover’s official and confidential files.

In response to Summers’s FOIA request, the FBI first released approximately 6,500 pages of material that had previously been made public under an earlier FOIA request. In addition, the FBI reprocessed the official and confidential files, ultimately releasing about 12,000 additional pages to Summers. In doing so, the FBI withheld portions of these files pursuant to exemptions 1, 2, 6, 7(C), 7(D), and 7(E) of the FOIA. See 5 U.S.C. § 552(b).

Challenging the FBI’s claimed exemptions, Summers filed a lawsuit against the United States Department of Justice in November 1987. By agreement of the parties, Summers selected 500 pages of the official and confidential files to serve as the basis for the FBI’s Vaughnin&ex, setting forth its justifications for refusing disclosure. The parties subsequently filed cross-motions for summary judgment addressing the FBI’s withholding of certain documents and portions of documents. In support of its motion, the government submitted eight affidavits prepared by FBI Special Agents. These affidavits purported to explain the nature of the withheld information, and stated which FOIA exemption or exemptions were intended to justify the withholding.

After the cross-motions for summary judgment became ripe for decision, the district court scheduled a status-call/motions hearing for November 1, 1996. A transcript of the hearing, which lasted approximately three minutes, appears below:

THE DEPUTY CLERK: Civil Action 87-3168, Anthony Summers v. Department of Justice. Mr. Lesar for the plaintiff, Melanie Pustay for the defendant.
MR. LESAR: Good morning, Your Hon- or.
THE COURT: Good morning, ladies and gentlemen. I have come to the conclusion in reviewing this case that it is a dead stalemate at the moment, that there are going to be no more documents released, there’s going to be no settlement, and that there is really no alternative left to simply deciding the motions. I take it you concur?
MR. LESAR: I certainly concur, yes.
THE COURT: Well, we have reviewed the file, reviewed the documents, made more than a cursory, but less than a total review of the affidavits, the documents that have been withheld and the exemptions claimed for them, and I am satisfied that the exemptions are properly claimed, [1079]*1079Mr. Lesar, so I’m going to grant the government’s motion and deny yours. If you can persuade the court of appeals to the contrary, more power to you.
MR. LESAR: I’ll try.
THE COURT: All right. This case has been around since 1987. It would be nice—it’s coming up on its tenth anniversary, in other words.
MR. LESAR: Yes.
THE COURT: It would be nice if there was some prospect that there were going to be further reviews, further release of documents, a little flexibility on the part of Mr. Summers, but I gather that there won’t be, and so let’s—let’s just move it along.
MR. LESAR: All right.
MS. PUSTAY: Thank you, your honor.
MR. LESAR: Thank you, your honor. I assume that the court will be issuing a written order?
THE COURT: I’m not going to write an opinion, just a summary order, and then you can reiterate everything that you’ve said on the fifth floor.
MR. LESAR: All right, thank you.
THE COURT: Let them worry with it for a while.
MR. LESAR: Alright.

The district court issued its “summary order” on the same day that the hearing took place. The order stated that “upon consideration of’ the record, including the affidavits of three FBI agents and “the Court’s own review of a sampling of the redacted documents and Vaughn indices, ... the materials withheld by defendant are, in fact, properly withheld under the Freedom of Information Act.” The two-page order did not refer to any particular withheld document, nor did it refer to any of the specific FOIA exemptions raised by the government.

Three days after the district court issued its decision, the government notified the court that it is reversible error not to make “specific findings of segregability regarding each of the withheld documents.” See Krikorian v. Department of State, 984 F.2d 461, 467 (D.C.Cir.1993). Attempting to correct this problem, the government submitted a proposed order stating that “all legal requirements for the exemptions invoked by defendant pursuant to the Freedom of Information Act ... have been satisfied, and that all reasonably segregable, nonexempt material has been disclosed.” The proposed order further stated that it was “just and proper” to grant the government’s summary judgment motion “for the reasons set forth in Defendant’s Motion for Summary Judgment and supporting papers.” The district judge signed the government’s proposed order verbatim, without waiting for Summers to file a response.

Summers filed a timely notice of appeal from the district court’s grant of summary judgment in favor of the government.

II. Discussion

A

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Bluebook (online)
140 F.3d 1077, 329 U.S. App. D.C. 358, 1998 U.S. App. LEXIS 7515, 1998 WL 176714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summers-v-department-of-justice-cadc-1998.