Clemente v. Fed. Bureau of Investigation, 16-5067

• Decision Date: 11 August 2017
• Docket Number: No. 16-5067,16-5067
• Citation: 867 F.3d 111
• Parties: Angela CLEMENTE, Appellant v. FEDERAL BUREAU OF INVESTIGATION, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

867 F.3d 111

Angela CLEMENTE, Appellant

v.FEDERAL BUREAU OF INVESTIGATION, et al., Appellees

No. 16-5067

United States Court of Appeals, District of Columbia Circuit.

Argued January 12, 2017

Decided August 11, 2017

James H. Lesar, Silver Spring, MD argued the cause and filed the briefs for appellant.

Daniel P. Schaefer, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney.

Before: Srinivasan and Pillard, Circuit Judges, and Edwards, Senior Circuit Judge.

Srinivasan, Circuit Judge

Appellant Angela Clemente, acting under the Freedom of Information Act, sought records from the FBI pertaining to a former informant. Clemente later initiated this FOIA action against the FBI in the district court. Over the course of several years of litigation, the district court granted summary judgment to the FBI on the adequacy of its search for responsive records and its invocation of FOIA's disclosure exemption for law-enforcement records. In addition, the court twice denied Clemente's motions for interim attorney fees. The court eventually dismissed the case after Clemente failed to file objections to the government's latest explanation for withholding information.

Clemente appeals the district court's decisions to grant summary judgment to the FBI, deny her motions for interim attorney fees, and dismiss her remaining claims. Given the limited scope of Clemente's FOIA request, we reject her challenges to the adequacy of the search. We also affirm the district court's remaining decisions. The court correctly found that the records in this case met the threshold for FOIA's law-enforcement exemption, and the court acted within its authority in denying Clemente's motions for interim attorney fees and in dismissing the remainder of the case.

I.

Clemente has spent years researching the activities of Gregory Scarpa, Sr., a high-ranking Mafia member and FBI informant. In furtherance of those efforts, on April 12, 2008, Clemente sent a letter to the Record/Information Dissemination Section of FBI Headquarters, requesting "the entire UNREDACTED FBI file of Gregory Scarpa Sr." Letter from Angela Clemente, Forensic Intelligence Analyst, to the FBI, Record/Info. Dissemination Section (Apr. 12, 2008). On May 21, 2008, she sent another copy of that request to the FBI.

On July 9, 2008, Clemente's attorney sent the FBI a letter stating that he wished to "clarify" her request. Letter from James H. Lesar, Attorney, to David M. Hardy, Section Chief, FBI Record/Info. Dissemination Section (July 9, 2008). The letter stated:

Initially, we wish to clarify her request in certain respects. First, Ms [.] Clemente's request for the file on Mr. Gregory Scarpa, Sr. is directed to any informant file on Mr. Scarpa, including in particular any Top Echelon ("TE") Informant file. Secondly, Ms. Clemente wishes to limit this request to the first 500 pages which fall within the following three categories.

Id. The letter went on to describe those three categories: records pertaining to New Orleans Mafia Chief Carlos Marcello, records about any trip Scarpa made to Costa Rica, and "all records in any informant file in chronological sequence." Id. Clemente's attorney also asked to know the number of additional responsive pages beyond the 500-page limit.

Clemente alleges that, on the same day, her lawyer also sent the FBI a second letter requesting information about Scarpa. That letter had a broader scope than the first one. The second letter requested "all records on or pertaining to Gregory Scarpa" and contained detailed instructions to the FBI on how to conduct its search. Second Letter from James H. Lesar, Attorney, to David M. Hardy, Section Chief, FBI Record/Info. Dissemination Section (July 9, 2008).

On July 21, 2008, Clemente brought this suit in district court, seeking to compel the FBI to respond to her request. Neither her original nor her first amended complaint mentioned a second July 9, 2008, letter. On October 10, 2008, David M. Hardy, the Chief of the FBI's Record/Information Dissemination Section, sent a letter confirming that the FBI had received Clemente's clarification (i.e., the first July 9 letter) and had located about 1,170 pages of potentially responsive records. The letter also quoted $107 in duplication costs for those records. On November 21, 2008, after Clemente's lawyer sent the FBI a check for $107, the agency released the first 500 pages from Scarpa's informant file. In March 2009, the FBI sent Clemente an additional 653 pages of responsive records from that file.

Over the next few years, the parties went through three rounds of summary judgment motions. The FBI filed several affidavits—commonly called Vaughn indices, see Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973) —explaining the agency's decision to withhold certain records. The case was originally assigned to Judge Friedman, but, on September 1, 2011, it was transferred to Judge Rothstein. See Letter from James H. Lesar, Attorney, to Mark J. Langer, Clerk, U.S. Court of Appeals for the D.C. Circuit 5 (Aug. 24, 2016) (Lesar Letter).

The district court granted summary judgment to the FBI with regard to the adequacy of its search. See Clemente v. FBI , 741 F.Supp.2d 64, 77, 79-80 (D.D.C. 2010). The court also concluded that the FBI satisfied its burden of showing that certain records had been compiled for law enforcement purposes and thus could be withheld from disclosure if the Bureau submitted an appropriate Vaughn index explaining why disclosure would cause one of the harms enumerated in 5 U.S.C. § 552(b)(7). Id. at 84. In 2013, and again in 2015, the district court denied Clemente's motions for an interim award of attorney fees. See Clemente v. FBI , 166 F.Supp.3d 11, 14 (D.D.C. 2015), reconsideration denied , No. 1:08-cv-1252, 2015 WL 10738604 (D.D.C. Dec. 1, 2015). After Clemente failed to file objections to the FBI's latest Vaughn index by a court-imposed deadline, the district court dismissed the case. Clemente appealed to this court and also filed a motion for a final award of attorney fees in the district court.

II.

Before addressing the merits of Clemente's claims, we first consider a challenge to the district court's jurisdiction. The orders on appeal in this case were entered by Judge Rothstein, who sits on the United States District Court for the Western District of Washington but was designated and assigned to the United States District Court for the District of Columbia. Clemente contends that Judge Rothstein lacked the proper designation to hear this case. We disagree.

The Chief Justice of the United States has statutory authority to "designate and assign temporarily a district judge of one circuit for service in another circuit." 28 U.S.C. § 292(d). Another provision gives the Chief Justice the same authority with respect to judges who have assumed senior status. Id . § 294(d). On August 23, 2011, pursuant to section 292(d), the Chief Justice designated Judge Rothstein "to perform judicial duties in the United States District Court for the District of Columbia during the period(s) of September 1, 2011 to March 1, 2012 ... and for such time as needed in advance to prepare and to issue necessary orders, or thereafter as required to complete unfinished business." Lesar Letter at 6. On September 1, 2011, this case was transferred to Judge Rothstein. She also assumed senior status on the same day. On February 23, 2012, the Chief Justice re-designated Judge Rothstein—this time pursuant to section 294(d) in light of her having assumed senior status—"to perform judicial duties" from March 1, 2012 to September 1, 2012. Id. at 7. That designation likewise allowed for "such time ... thereafter as required to complete unfinished business." Id.

Those designations cover Judge Rothstein's actions in this litigation. She took over the case while acting under the first designation. And although that designation provided for her to exercise duties under the assignment until March 1, 2012, it also enabled her to continue her duties for "such time thereafter" as may be "required to complete unfinished business." She therefore could continue working on this case. She assumed senior status during the operative period of the first designation, but we understand that designation to have continued in force notwithstanding her taking senior status. At any rate, in February 2012, she was redesignated under the statutory provision governing senior judges, and this second designation gave her authority to continue working on this case even assuming the first one no longer did so.

This case is unlike two cases Clemente cites, Wrenn v. District of Columbia , 808 F.3d 81 (D.C. Cir. 2015), and Frad v. Kelly , 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282 (1937). In Wrenn , we vacated an order entered by a visiting judge designated to hear certain specified cases because the order was issued in a case beyond the ones identified in the designation. See 808 F.3d at 83-84. In contrast, neither of Judge Rothstein's pertinent designations was limited to particular cases. The visiting judge in Frad v. Kelly sat by designation for a limited time period. Frad , 302 U.S. at 316, 58 S.Ct. 188. The Supreme Court found that the judge had no authority, after his designation expired, to revoke the probation of a defendant he had tried while sitting by designation because the trial had already been "concluded by the judgment of sentence." Id. at 317, 58 S.Ct. 188. The problem in Frad was thus the judge's issuing an order in what amounted to a new matter he took on after his designation had ended. Judge Rothstein's actions here, in contrast, were all taken in the same matter, one properly transferred to her during her 2011-12 designation.

III.

Turning to the merits, we first address Clemente's claims concerning the adequacy of the FBI's search for responsive records. Our review of the district court's grant of summary judgment on that issue is de novo. See Nation...