Department of Justice, In re, s. 91-2080

• Decision Date: 12 February 1992
• Docket Number: 91-2164,Nos. 91-2080,s. 91-2080
• Citation: 950 F.2d 530
• Parties: In re DEPARTMENT OF JUSTICE, Petitioner. Barbara Ann CRANCER, Appellee, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 530

950 F.2d 530

60 USLW 2377

In re DEPARTMENT OF JUSTICE, Petitioner Barbara Ann CRANCER, Appellee, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellant.

Nos. 91-2080, 91-2164.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1991.

Decided Dec. 2, 1991.

Rehearing En Banc Granted,

Opinion Vacated Feb. 12, 1992.

Scott R. McIntosh, Washington, D.C., argued (Stuart M. Gerson and Leonard Schaitman, Washington, D.C., and Stephen B. Higgins, St. Louis, Mo., on the brief), for appellant.

Richard E. Greenberg, Clayton, Mo., argued, for appellee.

Before McMILLAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

In case number 91-2164EM, the Department of Justice (DOJ) appeals the district court's ¹ order that it produce a Vaughn ² index to describe records requested by Barbara Ann Crancer (Crancer) pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1988). ³ In case number 91-2080, the DOJ alternatively seeks a writ of mandamus prohibiting the district court from ordering production of the Vaughn index. We dismiss the interlocutory appeal and deny the application for a writ of mandamus.

I. BACKGROUND

Jimmy Hoffa, the former president of the International Brotherhood of Teamsters, disappeared in Michigan in July 1975. The FBI began and, apparently, is still conducting, an investigation into Hoffa's disappearance. As a result of these investigative efforts, the FBI has accumulated over 13,800 pages of records relating to this matter.

In February 1987, Crancer, who is Hoffa's daughter, filed an FOIA request with the DOJ, seeking materials about an individual who allegedly gave information about Hoffa's disappearance to the FBI. Crancer's request was denied on the basis of Exemption 7(A) of the FOIA, which exempts from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A).

In February 1989, after all administrative appeals were denied, Crancer filed suit in district court to obtain an order compelling the DOJ to provide her with the documents she requested. While that suit was pending, Crancer submitted a second information request that sought any and all documents relating to the FBI's investigation into Hoffa's disappearance. After this request was denied, Crancer amended her lawsuit to include the broader request.

In June 1990, the DOJ moved for summary judgment; one month later, the district court ordered the DOJ to provide Crancer with a Vaughn index within thirty days for her to use in opposing the summary judgment motion. The DOJ moved for reconsideration; the district court refused to rescind its order but did grant the DOJ more time to produce the index. In October 1990, the DOJ asked the district court to modify its order and allow the DOJ to provide only the categories of documents contained in the Hoffa file. At the same time, the DOJ submitted a list of nine categories that purported to describe all the documents in the file and an affidavit that described the potential harm to enforcement activities if these categories of documents were released.

The district court denied this request in January of 1991 and gave the DOJ twenty days to prepare a full index and submit it to a magistrate judge for in camera review. One month later, the DOJ asked the magistrate judge for alternate relief and proposed to allow the magistrate judge to review the actual documents in camera. In March, the magistrate judge denied this request, but afforded the DOJ more time to prepare the index; the index was to be completed in one year, with 25% of the index to be submitted to the court every three months. On April 4, 1991, the DOJ asked the district court to reconsider the magistrate judge's order or, in the alternative, certify the matter for interlocutory appeal. The district court denied these motions two weeks later, and the matter has now been brought to this court.

II. DISCUSSION

A. Jurisdiction

We must begin by deciding whether this court has jurisdiction to hear this case, either as an interlocutory appeal or as an action seeking a writ of mandamus. We conclude that the unique characteristics of this case allow us, on this occasion, to decide the issues presented by the DOJ.

Mandamus is an extraordinary remedy that is "available only in those exceptional circumstances amounting to a judicial usurpation of power," In re Ford Motor Co., 751 F.2d 274, 275 (8th Cir.1984), or "where the district court exceeds 'the sphere of its discretionary power.' " In re Cessna Distrib. Antitrust Litig., 532 F.2d 64, 68 (8th Cir.1976) (quoting Will v. United States, 389 U.S. 90, 104, 88 S.Ct. 269, 278, 19 L.Ed.2d 305 (1967)). "Other factors which bear on the appropriateness of mandamus review include the need to correct error which is likely to recur and to provide guidelines for the resolution of novel and important questions." Central Microfilm Serv. Corp. v. Basic/Four Corp., 688 F.2d 1206, 1212 (8th Cir.1982), cert. denied, 459 U.S. 1204, 103 S.Ct. 1191, 75 L.Ed.2d 436 (1983).

Crancer contends that it is within the district court's discretion to order creation of a Vaughn index, and consequently the court did not act outside its jurisdiction in ordering the DOJ to create an index in this case. The DOJ argues that Exemption 7(A) is different from other exemptions due to case law from the Supreme Court, this court, and other courts of appeal that indicates it is never appropriate for a district court to require a Vaughn index when the government agency invokes Exemption 7(A). ⁴

The DOJ's argument is a novel one and has not been directly addressed by any court. If the DOJ is correct in its contention that the district court lacked authority to order a Vaughn index, then a writ would be the proper remedy. Because the issue of whether the writ is available is intertwined with the merits of this interlocutory matter, we must decide whether the district court had authority to require a Vaughn-type index in these circumstances. Cf. In re Brotherhood of Ry., Airline and S.S. Clerks, 605 F.2d 1073, 1074 (8th Cir.1979) (per curiam) (deciding to reach merits of dispute because "[i]f the District Court was without jurisdiction to issue the ... order, a court of appeals has jurisdiction to dissolve that order by means of a writ of mandamus."). ⁵

B. Use of Vaughn Indices and Exemption 7(A)

This case is unique because it is not a review of a district court's order that documents be disclosed, nor is it a review of a district court's decision that documents are exempt from disclosure. This case asks us to determine what a district court may do while deciding whether documents are or are not exempt from disclosure.

The district court has the responsibility to review the applicability of the government's claimed exemption de novo. 5 U.S.C. § 552(a)(4)(B). This task is difficult because ordinarily a government agency, and not the court, has access to the documents in question. The seminal case of Vaughn v. Rosen articulated concerns about the need to find a mechanism that would "permit the court system effectively and efficiently to evaluate the factual nature of disputed information." Vaughn, 484 F.2d at 826. From these concerns, the D.C. Circuit created what is now known as a Vaughn index, which does nothing more than "correlate statements made in the Government's refusal justification with the actual portions of the document." Id. at 827 (footnote omitted). Currently, a Vaughn index is understood to perform three important tasks:

[I]t forces the government to analyze carefully any material withheld, it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court.

Lykins v. Department of Justice, 725 F.2d 1455, 1463 (D.C.Cir.1984).

There is no prescribed form for a Vaughn index; any form is acceptable as long as the affidavits provided by the government assist the court's efforts to decide the issues at hand. See, e.g., Keys v. Department of Justice, 830 F.2d 337, 349 (D.C.Cir.1987). Regardless of form, however, certain components are integral parts of any Vaughn index. Specifically, Vaughn indices usually communicate descriptions of each and every document contained in the file, including a general description of each document's contents and general facts about their creation (such as date, time, and place). For each document, the exemption claimed by the government is identified, and an explanation as to why the exemption applies to the document in question is provided. ⁶

The government argues the district court lacks the authority to require a Vaughn index because such an index is not required when Exemption 7(A) is invoked. The Supreme Court has indicated that with respect to Exemption 7(A), the government need not point to a particularized harm to a particular enforcement proceeding; instead, the government may argue (and courts may hold) that certain general categories of documents will typically interfere with enforcement proceedings if the documents are disclosed. N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 223-24, 236, 98 S.Ct. 2311, 2317-18, 2324, 57 L.Ed.2d 159 (1978). In the wake of Robbins, many courts of appeal have altered their views on the need for a Vaughn index when Exemption 7(A) is involved. The rationale underlying these post-Robbins decisions has been that a Vaughn index is unnecessary because the government is permitted to demonstrate interference based on categories of documents and need not demonstrate interference with

enforcement proceedings on a document-by-document basis. E.g.,...