Summers v. U.S. Dept. of Justice

• Citation: 925 F.2d 450,288 U.S.App.D.C. 219
• Decision Date: 08 February 1991
• Docket Number: No. 90-5082,90-5082
• Parties: Anthony SUMMERS, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 450

925 F.2d 450

288 U.S.App.D.C. 219

Anthony SUMMERS, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee.

No. 90-5082.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 4, 1991.

Decided Feb. 8, 1991.

Appeal from the United States District Court for the District of Columbia.

James H. Lesar, Washington, D.C., for appellant.

Nathan Dodell, Sp. Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before RUTH BADER GINSBURG, SILBERMAN and THOMAS, Circuit Judges.

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

RUTH BADER GINSBURG, Circuit Judge:

Anthony Summers, a published author and investigative journalist, is plaintiff-appellant in this Freedom of Information Act ("FOIA") suit against the United States Department of Justice, Federal Bureau of Investigation ("FBI"). Summers contests the district court's order granting a stay of proceedings and denying his request for immediate discovery. Because the district court's order is neither a final judgment nor an appealable interlocutory order, we lack authority to entertain Summers' pleas and therefore dismiss his appeal.

I.

Summers is under contract with a publishing company to write a book about former FBI director J. Edgar Hoover. In January 1988, Summers submitted a FOIA request to the FBI seeking Hoover's appointment calendars, telephone logs, telephone message slips, and a waiver of all search fees and copying costs. In May 1989, the FBI denied Summers' waiver request. The FBI also indicated that documents responsive to Summers' request numbered some 17,100 pages. The agency sought a deposit of $427.50, or 25% of estimated copying costs, before processing the request. Summers filed an administrative appeal of the waiver denial, and in late October 1989, the FBI granted him a complete fee waiver.

On December 7, 1989, Summers commenced this action seeking an injunction ordering the FBI promptly to produce the requested information. Summers immediately sought expedited consideration of his suit, and asked the court to set a schedule for the production of requested documents. The schedule Summers proposed would have required the FBI to begin weekly releases of nonexempt materials by January 5, 1990, and to complete such releases by February 1, 1990.

The FBI opposed Summers' motion and sought a stay of proceedings under 5 U.S.C. Sec. 552(a)(6)(C), ¹ and Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C.Cir.1976). ² In support of In response, Summers noticed the depositions of several FBI personnel, including Llewellyn and the document examiner assigned to process Summers' request. Summers also sought the production of documents on which Llewellyn had relied in his declaration; in addition, he asked for specific information on the thirty-two requests scheduled to be processed ahead of his. The FBI moved for a protective order to stay discovery, asserting the absence of any basis upon which to doubt Llewellyn's affidavit or the FBI's good faith. Summers opposed, citing the FBI's long delay in assigning his request to a document examiner during the pendency of Summers' waiver application. Summers also referred to widely varying processing times in two unrelated FOIA cases. He offered these references as support for his contention that the FBI was not processing cases in the order of receipt.

                its request for a stay, the FBI submitted the declaration of Angus B. Llewellyn, a supervisory agent in the FBI's FOIA and Privacy Act section.  Llewellyn attested to the number and nature of FOIA requests handled by the FBI on a yearly basis, and described the FBI's procedures for processing such requests, including the agency's practice to process requests "in the order received."    See Llewellyn Declaration, filed January 8, 1990, at 2, Appendix ("App.") at 22.  Llewellyn reported that Summers' FOIA request had been assigned to a document examiner in November 1989, shortly after the FBI granted Summers a fee waiver.  Because the examiner had thirty-two assignments ahead of Summers' request, in addition to a case subject to court-imposed deadlines, Llewellyn estimated that the processing of Summers' FOIA request would begin by February 1, 1991
                

The FBI then filed a second declaration prepared by Llewellyn. This document reported that because Summers had been granted a full fee waiver, the order for processing his request would be based on the date the request was received by the FBI--January 11, 1988--rather than the date it was assigned to a document examiner, in November 1989. The attendant recalculation placed Summers' request eighth in line for processing, behind six requests received before his, plus the case subject to court order, and rendered it "conceivable that processing [might] begin earlier" than previously projected. See Second Llewellyn Declaration, dated February 22, 1990, at 6, App. at 34.

On March 2, 1990, the district court denied Summers' plea for a scheduled production of requested documents and refused to expedite consideration of his suit. The court stayed further proceedings, including all discovery, and ordered the FBI to submit status reports, at sixty-day intervals, on the progress made in processing Summers' request. See Summers v. U.S. Department of Justice, 733 F.Supp. 443, 444 (D.D.C.1990). Applying the standards framed by this court in Open America, see supra note 2, the district court found, based on Llewellyn's declarations, that the FBI had shown "exceptional circumstances" for the tardy pace of its FOIA compliance, i.e., the large volume and extensive nature of FOIA requests the agency had received and was processing. Summers, 733 F.Supp. at 444; see 5 U.S.C. Sec. 552(a)(6)(C), set out supra note 1. These circumstances, the district court concluded, coupled with the FBI's demonstrated exercise of "due diligence in responding to [Summers'] request," warranted a stay of the court action to "allow the agency additional time to complete its review of the records." 5 U.S.C. Sec. 552(a)(6)(C); see Summers, 733 F.Supp. at 444.

The district court further stated that nothing before it showed "that the FBI [was] departing from its standard practice in processing the requests or attempting to avoid prompt disclosure." Id. The FBI's continued diligence would be secured, the court indicated, through the filing of regular status reports while the stay remained

                pending.  Id.  Finally, the court stated that Summers had failed to demonstrate "an exceptional need or urgency in processing his FOIA requests."    Id.  The district court noted two FOIA cases, one a related action by Summers, in which district judges in this circuit had held that "publishing deadlines do not necessitate expedited treatment";  the court declined "to depart from these other rulings."    Id. (emphasis in original) (citing Summers v. U.S. Department of Justice, 729 F.Supp. 1379 (D.D.C.1989);  Mangold v. Central Intelligence Agency, C.A. No. 88-1826, 1989 WL 229396 (D.D.C. May 3, 1989))
                

II.

The district court's stay of proceedings under Open America is not a "final decision" appealable under 28 U.S.C. Sec. 1291. Rather than conclusively determining the merits of Summers' FOIA suit, "the order ensures that litigation will continue in the District Court." See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275, 108 S.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988).

Summers argues that the nonfinal order is reviewable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To fall "within the 'small class' of decisions excepted from the final judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). In Open America, the district court had granted a FOIA requestor's demand under Vaughn v. Rosen, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), for the FBI's "detailed justification, itemization, and indexing of the documents within thirty days." Open America, 547 F.2d at 608. In a brief footnote citing Cohen, this court held the order immediately reviewable, finding that the district court had "settled conclusively the position of the parties under 5 U.S.C. Sec. 552(a)(6)(C) (1970), whose construction, in light of the circumstances in this and other cases, is too important to be denied review." Id. at 608 n. 8.

Comparison of the district court action reviewed in Open America with the stay order before us indicates why this case does not fit within the Cohen doctrine's very limited exception to the firm final judgment rule. In Open America, the district court directed the agency to process immediately the plaintiff's FOIA request and clearly did not contemplate future revision or modification of its order. Open America, 547 F.2d at 608. In this case, by contrast, the district court required the FBI to file periodic status reports on its progress in processing Summers' FOIA request. The stay order thus ranks as one "subject to revision in the District Court"; it therefore does not "conclusively determine" the issue of court-imposed time constraints on the FBI's processing of Summers' request. ³ See Coopers & Lybrand, 437 U.S. at 469, 98 S.Ct. at 2458; see also Gulfstream Aerospace, 485 U.S. at 277-78, 108 S.Ct. at 1137-38.

Summers alternatively argues that the stay order had the practical effect of denying injunctive relief and is therefore appealable under 28 U.S.C. Sec. 1292(a)(1). Here, too, we resist erosion of the final judgment rule. To fit the "equivalent to the refusal of an injunction" bill, the...