Nolan v. U.S. Dept. of Justice

• Decision Date: 18 August 1992
• Docket Number: No. 91-1139,91-1139
• Citation: 973 F.2d 843
• Parties: Richard J. NOLAN, Plaintiff-Appellant, v. U.S. DEPARTMENT OF JUSTICE and United States of America, acting through its agency, Defense Investigative Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 843

973 F.2d 843

23 Fed.R.Serv.3d 949

Richard J. NOLAN, Plaintiff-Appellant, v. U.S. DEPARTMENT OF JUSTICE and United States of America acting through its agency, Defense Investigative Service, Defendants-Appellees.

No. 91-1139.

United States Court of Appeals Tenth Circuit.

Aug. 18, 1992.

Wendy Keats, Atty., Civ. Div., U.S. Dept. of Justice (Leonard Schaitman, Atty., Civ. Div., U.S. Dept. of Justice, Stuart M. Gerson, Asst. Atty. Gen., and Michael J. Norton, U.S. Atty., Denver, Colo., with her on the brief), Washington, D.C., for defendants-appellees.

Richard J. Nolan, pro se.

Before LOGAN, ANDERSON, Circuit Judges, and THEIS, Senior District Judge. ^*

THEIS, Senior District Judge.

Plaintiff-appellant Nolan appeals the district court's adverse summary disposition of his action against the Department of Justice (DOJ) and the Defense Investigative Service (DIS) for violations of the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act, 5 U.S.C. § 552. We dismiss Nolan's DIS appeal for want of appellate jurisdiction, and affirm the district court's grant of summary judgment in favor of DOJ.

I

Appellant Richard Nolan, an attorney, was previously employed by various agencies in the federal government. In January 1988, while serving as regional counsel for the Environmental Protection Agency, he received an offer of employment from the United States Attorney's Office, contingent on security clearance and approval by the United States Attorney General. Nolan expected a routine security clearance.

Earlier, on July 22, 1987, Nolan had requested all investigative records pertaining to himself maintained by the Defense Investigative Service. The DIS produced those documents on June 16, 1988. Pursuant to § 552a(d)(1) of the Privacy Act, ¹ Nolan sought to amend certain statements contained in the documents. He claimed that those statements, uttered by his former EPA supervisors, Barnes and Adams, falsely "accus[ed] him of disloyalty, lack of leadership ability, and incompetence." DIS refused to amend the statements except to delete all references to two particular allegations made by Adams.

On November 3, 1988, when he had still not received his appointment, Nolan made a Privacy Act request with the Department of Justice to access all his records. About a year later, on November 24, 1989, when the DOJ records had not been released, Nolan initiated this action against DOJ to access those records, and against DIS to correct or expunge the unfavorable statements in the DIS records. Four days after the suit was filed, the DOJ released 411 pages of documents, followed by an additional 1000 pages of documents in March 1990. The released documents were heavily redacted. A great number of documents, however, were withheld completely.

The district court granted summary judgment for DOJ on March 18, 1991, holding that the redacted and unreleased documents were properly exempt under sections 552a(j)(2) and (k)(5) of the Privacy Act. On July 17, 1991, the district court entered a second order, granting summary judgment in favor of DIS on the ground that the adverse statements that Nolan sought to amend were not based on clearly erroneous facts. This appeal followed.

II

We first address the appellees' assertion that this Court lacks appellate jurisdiction over the DIS claim due to Nolan's failure to file a timely notice of appeal. The district court entered two separate orders in favor of two separate defendants on two separate occasions. The district court first dismissed the claim against DOJ on March 18, 1991. Nolan duly filed a notice of appeal. However, because the claim against DIS still remained unadjudicated in the district court, the March 18 district court order was not yet final and appealable. This Court concluded that Nolan's notice of appeal was premature and directed Nolan either to submit a certified copy of a district court order granting certification under Fed.R.Civ.P. 54(b) or to file a final district court order adjudicating the remaining claims in this case--in order to avoid summary dismissal of his DOJ appeal.

On August 1, 1991, after the district court had dismissed the remaining DIS claims, Nolan filed a copy of the district court's July 17 order coupled with a Docketing Statement Supplement, which stated in full: "Comes now the Plaintiff-Appellant and supplements the Docketing Statement with the included final Judgment and Memorandum Opinion and Order of the Court below in response to this Court's letter of July 1, 1991." On Nolan's cover letter was written: "Enclosed please find Plaintiff-Appellant's supplement to the Docketing material which is the District Court's final order and memorandum opinion. I believe that this should complete the Docketing requirements."

DIS claims that the appellant failed to file a notice of appeal from the district court's July 17 order granting summary judgment in favor of DIS. According to DIS, the filing of the July 17 final order, while sufficient to ripen the prematurely-appealed March 18 order dismissing DOJ, does not suffice to confer appellate jurisdiction over the July 17 judgment itself. DIS contends that, to appeal the July 17 judgment, the appellant was required to file a separate notice of appeal within 60 days of the entry of the July 17 judgment. Failing to do so, argues DIS, the appellant has not properly invoked this Court's jurisdiction.

Fed.R.App.P. 3(c) provides that "[a]n appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court within the [allowable] time." The notice of appeal "shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken." Fed.R.App.P. 3(c).

The requirements of Rule 3 should be liberally construed. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 316, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988); Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962). "[M]ere technicalities" should not obstruct the consideration of a case on its merits. Foman, 371 U.S. at 181, 83 S.Ct. at 229. As such, even when a formal notice of appeal is defective or non-existent, "a court may nonetheless find that the litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule requires." Torres, 487 U.S. at 316-17, 108 S.Ct. at 2408-09. Subjecting Rule 3 to a liberal construction does not, however, excuse compliance with the rule. The dictates of Rule 3 are jurisdictional. Each requirement in Rule 3 must be satisfied as a prerequisite to appellate review. Smith v. Barry, --- U.S. ----, ----, 112 S.Ct. 678, 682, 116 L.Ed.2d 678 (1992).

In this case, the appellant did not file a formal notice of appeal from the DIS judgment. The sole notice of appeal, filed prematurely by Nolan, referenced only the dismissal of his DOJ claim. The filing of the district court's final order merely served to perfect Nolan's premature appeal of the DOJ ruling. See Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir.1988) (A premature notice of appeal becomes effective if the lower court has adjudicated all remaining outstanding claims before the appellate court considers the merits of the appeal.). We have never held, however, that the filing of a final order serves to ripen not only the previous premature appeal but also any subsequent appeals arising out of the same case. On the contrary, we stated in Lewis that when a final adjudication occurs, we will consider the premature appeal to have ripened and "will consolidate or companion any subsequent appeals arising out of the same district court case." Id. at 645. Implicit in our statement is that any subsequent appeals must separately and individually comply with the Rules of Appellate Procedure. Merely submitting a final district court order for the purpose of perfecting a premature appeal does not automatically effectuate the appeal of every judgment or order rendered in the entire case.

There was moreover no functional equivalent of a notice of appeal filed within the allowable time to appeal the DIS judgment. Although an appellate brief may serve as a functional equivalent of a notice of appeal, Smith v. Barry, --- U.S. at ----, 112 S.Ct. at 682, Nolan's brief-in-chief was filed outside the allowable time, and cannot therefore be deemed a timely functional equivalent. Id. (appellate court may consider a filing styled as a brief if the filing is timely under Rule 4 and conveys the information required by Rule 3). Furthermore, nothing in Nolan's actions or communications manifested his intent to appeal both the DIS and DOJ rulings. Cf. Dupree v. United Parcel Serv., Inc., 956 F.2d 219, 220 n. 1 (10th Cir.1992) (single notice of appeal was adequate where the record shows that the parties clearly intended to appeal both of the district court's orders). Nolan filed the final district court order in response to this Court's directive that he do so to avoid summary dismissal of his DOJ appeal. We cannot discern from such a filing an intent also to appeal the DIS judgment. Likewise, Nolan's cover letter expressing his belief that "this should take care of the docketing requirements" conveys nothing about his intent to appeal both orders.

Because Nolan has failed to comply with Rule 3(c)'s requirement of designating the specific judgment from which the party appeals, this Court lacks jurisdiction to consider the merits of the DIS claim. Accordingly, the DIS appeal is dismissed.

III

With respect to Nolan's appeal from the dismissal of his DOJ claims, he argues principally that the district court erred in denying his rights to access and amend the records that were redacted or withheld by the DOJ. The district court concluded that the redactions and withholdings of the two FBI files at issue--the public...