Strang v. U.S. Arms Control and Disarmament Agency

Decision Date10 January 1989
Docket NumberNo. 88-5098,88-5098
Citation864 F.2d 859,275 U.S. App. D.C. 37
PartiesKathleen STRANG, Appellant, v. UNITED STATES ARMS CONTROL AND DISARMAMENT AGENCY.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (C.A. No. 86-1057).

George A. Lehner, for appellant.

Robert E. L. Eaton, Jr., Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellee.

Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and GIBSON, * Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

Kathleen Strang is a foreign affairs officer at the United States Arms Control and Disarmament Agency (ACDA). In June 1985, ACDA security officer Berne M. Indahl began an internal investigation into allegations that Strang had breached security procedures by improperly storing, transporting, and disclosing classified documents. On the basis of Indahl's findings and the report of a special security panel, Strang was suspended in December 1986 for six months without pay and deprived of her clearance to view Sensitive Compartmented Information, or "codeword" documents. Strang has since been restored to her position with Top Secret, but not "codeword," security clearance.

In this civil action, Strang seeks, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 (1982 & Supp. IV 1986), and the Privacy Act, id. Sec. 552a, the following relief: release of nine memoranda generated during Indahl's investigation and withheld in their entirety by ACDA; amendment of twelve other allegedly inaccurate

                memoranda in ACDA's records;  and damages for her suspension and loss of codeword clearance, which she claims are the result of ACDA's intentional or willful maintenance of inaccurate records.  The district court, on February 25, 1988, granted summary judgment to ACDA on all counts and Strang now appeals. 1   For the reasons stated herein, we affirm the district court's grant of summary judgment except as to Strang's request for the amendment of records concerning her alleged transmission, without proper clearance, of classified information to Japanese officials;  we remand that issue for further proceedings in the district court
                

I.

Strang first contends that summary judgment was inappropriate because she was not afforded an adequate opportunity to conduct discovery. Strang, however, did not state with sufficient particularity to the district court--or, for that matter, to this court--why discovery was necessary. We therefore reject this opening argument.

Federal Rule of Civil Procedure 56(f) provides that a court may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat the motion. See, e.g., Londrigan v. FBI, 670 F.2d 1164, 1175 (D.C.Cir.1981); see generally 10A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d Sec. 2740, at 530-31 (1983). Strang never offered the requisite explanation. She did state generally that discovery "would be invaluable in this case" and would give her "an opportunity to test and elaborate the affidavit testimony already entered." Joint Appendix (J.A.) at 76. But she never stated concretely why she could not, absent discovery, present by affidavit facts essential to justify her opposition to ACDA's summary judgment motion. Without some reason to question the veracity of affiants such as Indahl, whom Strang sought to depose in May 1986, Strang's desire to "test and elaborate" affiants' testimony falls short; her plea is too vague to require the district court to defer or deny dispositive action. In sum, Strang offered no specific reasons demonstrating the necessity and utility of discovery to enable her to fend off summary judgment; the district court, therefore, acted within the bounds of its discretion in not granting a continuance for Strang to conduct discovery.

Strang also objects on appeal to ACDA's inclusion of two additional affidavits in the agency's district court reply brief in support of summary judgment; those affidavits, she now maintains, should be regarded as a separate or supplemental motion. Because the affidavits were served on the day of the hearing, she contends, their introduction violates Rule 56(c), which provides that a motion shall be served ten days prior to the hearing. This claim is insubstantial. First, the affidavits merely supported the existing motion and did not constitute a new motion for summary judgment on additional issues or grounds. Cf. Laningham v. United States Navy, 813 F.2d 1236, 1240-41 (D.C.Cir.1987). Second, by her silence in the district court, Strang waived any valid objection she may have had to the late introduction of additional affidavits. She neither objected to the district court's consideration of the additional affidavits, nor asked for time to respond to them. See Woods v. Allied Concord Financial Corp., 373 F.2d 733, 734 (5th Cir.1967); cf. CIA. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 409-10 (1st Cir.1985).

II.

Strang next argues that the district court should not have granted summary judgment to ACDA on her claim for the release of nine memoranda because there are genuine issues of material fact regarding whether the sources of information in those memoranda were promised confidentiality. We reject Strang's contention, and affirm the district court's decision, because Indahl's affidavit provides adequate assurance that the sources were expressly promised confidentiality.

FOIA and the Privacy Act both provide for the fullest possible disclosure of agency records to the public, subject to certain exceptions. ACDA asserts that the memoranda sought by Strang are exempt from the disclosure requirements by FOIA section (b)(7)(D) and Privacy Act sections (k)(2) and (k)(5). FOIA section (b)(7)(D) exempts

records or information compiled for law enforcement purposes, but only to the extent that the production of such records or information ... could reasonably be expected to disclose the identity of a confidential source, ... and, in the case of a record or information compiled by ... an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.

5 U.S.C. Sec. 552(b)(7)(D). Section (k)(2) of the Privacy Act provides that an agency may promulgate rules exempting from the disclosure requirements

investigatory material compiled for law enforcement purposes, ... Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.

Id. Sec. 552a(k)(2). Privacy Act section (k)(5) allows the agency to establish rules exempting

investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment ... or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.

Id. Sec. 552a(k)(5). ACDA's implementing regulations mirror the terms of the statutory exemptions. See 22 C.F.R. Secs. 602.31(g)(4), 603.8(a)(2)-(3) (1988).

As a preliminary matter, we reject Strang's assertion that the memoranda were not "compiled for law enforcement purposes" within the meaning of section (k)(2). First, Strang did not dispute the applicability of section (k)(2) before the district court. It is firmly established that "issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal." District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984); see also id. at 1078. Second, even if this issue were properly preserved for appellate consideration, we do not interpret "law enforcement" as limited to criminal law enforcement, as Strang would have us do; rather, we read the term as encompassing the enforcement of national security laws as well. 2 Although Because all three exemptions are applicable, the real bone of contention is whether the sources of the information in the nine withheld memoranda were expressly promised confidentiality. 3 ACDA relies on Indahl's affidavit, which describes the procedures Indahl followed when interviewing individuals about Strang:

Strang has not been subject to criminal prosecution, her suspension and loss of codeword security clearance resulted from her undisputed breach of national security regulations. See J.A. at 49-53 (letters to Strang from ACDA Director Kenneth Adelman and Administrative Director William Montgomery); id. at 106-09 (memorandum of ACDA special security panel).

In each case, at the outset, either I asked whether the source desired confidentiality or I received requests that I understood to be requests for confidentiality. In some instances, the requests were made specifically in terms of "confidentiality." In others, the requests were cast in such terms as: "this is just between you and...

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