999 F.2d 570 (D.C. Cir. 1993), 92-5008, Summers v. U.S. Dept. of Justice

Docket Nº:92-5008, 92-5102.
Citation:999 F.2d 570
Party Name:Anthony SUMMERS v. UNITED STATES DEPARTMENT OF JUSTICE, Appellant. James CAMPBELL v. UNITED STATES DEPARTMENT OF JUSTICE, Appellant.
Case Date:July 30, 1993
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 570

999 F.2d 570 (D.C. Cir. 1993)

Anthony SUMMERS

v.

UNITED STATES DEPARTMENT OF JUSTICE, Appellant.

James CAMPBELL

v.

UNITED STATES DEPARTMENT OF JUSTICE, Appellant.

Nos. 92-5008, 92-5102.

United States Court of Appeals, District of Columbia Circuit.

July 30, 1993

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Argued May 17, 1993.

Michael J. Ryan, Asst. U.S. Atty., Washington, DC, argued the cause, for appellant. With him on the briefs were Jay B. Stephens, U.S. Atty. at the time the briefs were filed, John D. Bates, R. Craig Lawrence and Michael T. Ambrosino, Asst. U.S. Attys., Washington, DC.

James H. Lesar, Washington, DC, argued the cause, for appellees Anthony Summers and James Campbell.

Before WALD, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

In this consolidated appeal, the Department of Justice ("DOJ") contests two district court rulings that a federal statute, 28 U.S.C. § 1746, requires it to accept, in conjunction with Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, requests, unnotarized, unsworn privacy waivers signed under penalty of perjury. We affirm the district court in one appeal and dismiss the other for lack of jurisdiction. 1

I.

In September 1990, Anthony Summers submitted a FOIA request to the Federal Bureau of Investigation ("FBI") for documents pertaining to John F. Shaw, Sr. Accompanying Summers' request was a privacy waiver, signed by an individual who identified himself as Shaw, authorizing the release of all such documents. The waiver included all data normally required for such a document, but was not notarized. Instead, it was signed beneath a specific notice that the signer was subjecting himself to penalties for perjury.

In response to Summers' filing, the FBI requested additional information. Most notably, the agency--relying on 28 C.F.R. § 16.41(d)(1), which provides that "a requester must provide with his request an example of his signature, which shall be notarized"--asked Summers to provide Shaw's notarized signature on the privacy waiver. Summers refused, however, on the ground that such a demand violated 28 U.S.C. § 1746, which allows "any matter" that must be established by a "sworn declaration" to be shown "with like force and effect" by an unsworn declaration subscribed to as true under penalty of perjury. Because Summers balked at providing the requested notarization, the FBI denied his FOIA request.

After pursuing administrative remedies, Summers filed suit in district court seeking a declaratory judgment that the DOJ rule requiring notarized signatures violated § 1746. In that forum, the DOJ argued that its regulation was not at odds with § 1746 because that statute allows the use of unsworn, unnotarized declarations only where a federal law or rule requires a party to swear to the contents of the statement, not where, as here, the regulation at issue merely requires verification by a notary of the identity of the signer of the statement. Since the regulation

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did not contravene § 1746, the DOJ argued, it should be upheld as a reasonable means of...

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