Wade, Matter of

Decision Date28 July 1992
Docket Number91-2538,Nos. 91-2537,s. 91-2537
Citation969 F.2d 241
Parties, 23 Bankr.Ct.Dec. 186 In the Matter of Ulyssus George WADE, Joyce Wade, and U.G. Wade Trucking, Inc., Debtors-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Jeffrey L. Hunter, Asst. U.S. Atty., Office of the U.S. Atty., Indianapolis, Ind., for appellees.

Mark Garringer, Indianapolis, Ind., for debtors-appellants.

Before CUMMINGS and CUDAHY, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

CUMMINGS, Circuit Judge.

Ulyssus George Wade and Joyce Wade ("the Wades") appeal two district court decisions granting summary judgment to the defendants and dismissing claims regarding the Wades' Freedom of Information Act ("FOIA") request. We affirm the district court decisions.


The Wades are involved in personal and business bankruptcy proceedings. The Wades' affairs were turned over to bankruptcy trustee Edward B. Hopper, II. Hopper later left the case, and alleged that the Wades concealed assets; concealed and mutilated financial affairs documents; and committed perjury during the course of the bankruptcy proceedings. In response, the Wades accused Hopper of looting the estate. These allegations relating to the core estate are the subject of a different appeal we address in another case. See In re Wade, No. 91-2536. We note that in each case, the appellants have sprinkled liberally their complaints with allegations of fraud, judicial bias, 1 and wrongdoing by everybody involved (but themselves, of course).

At any rate, the Wades filed a FOIA request with the United States Attorney for the Southern District of Indiana seeking records that relate to the Wades, apparently in conjunction with Hopper's allegations. The Wades specifically excluded public records from their request. The FOIA request was forwarded to the Executive Office of the United States Attorneys ("EOUSA"). The request was fulfilled only in part, as several documents were withheld or redacted pursuant to statute. An unspecified number of pages were withheld pursuant to 5 U.S.C. § 552(b)(3) and Fed.R.Crim.P. 6(e) (secrecy of grand jury proceedings); an FBI agent's name was redacted pursuant to § 552(b)(7)(C) 2 (personal privacy); a letter was withheld pursuant to § 552(b)(6) (personnel, medical, or similar files), § 552(b)(7)(D) (compiled by a law enforcement agency in the course of a criminal investigation), and § 552(b)(7)(C); a different letter was withheld pursuant to § 552(b)(5) (inter or intra agency memoranda, attorney work product), § 552(b)(6), (b)(7)(C), and (b)(7)(D); and finally a 12-page letter from the Internal Revenue Service to the Assistant United States Attorney who scrawled his own notes upon it was also withheld pursuant to § 552(b)(5). The remaining withheld documents were referred to the FBI for recommendation regarding their release.

The Wades sought relief from the district court for the denial of their FOIA request. A review of the docket sheet reveals a dizzying number of motions filed, given the subject matter, by both parties--but particularly by the Wades. 3 Ultimately, the district court granted summary judgment for the United States Attorney on all but the documents withheld pursuant to the grand jury exception. The plaintiffs sought relief from this decision and were denied it. In the same order denying the Wades relief, the court entertained the United States Attorney's motion to reconsider and granted him summary judgment on the grand jury issue as well. Judgment was entered accordingly.

The Wades raise the following issues on appeal 91-2537: 1) whether the district court erred by granting summary judgment on defendants' behalf, and 2) whether the district court abused its discretion by denying plaintiffs' motion to reconsider. They raise other questions on appeal, all that are subsumed by these two issues. 4 Also, appellants raise a host of bad faith issues which we dispose of during our discussions of the other issues. 5

We consider also a second appeal, No. 91-2538, consolidated due to the similarities between the issues. This case involves a FOIA request the Wades filed with the Executive Office of the United States Trustee ("EOUST"). The request was for all correspondence produced from Hopper to the EOUST, as referred to in a letter from Hopper to the EOUST responding to the Wades' allegations of Hopper's improper dealings with the estate. The specific reference was "I [Edward Hopper, II] have enclosed copies of all correspondence reflected in the file between our office, as counsel for the Trustee, and third parties." The EOUST answered the Wades' request with a letter from John Logan, general counsel for the EOUST. The letter stated that a search of the records did not unearth any information relating to the particular correspondence in which the Wades were interested. The Wades assert that this is untrue and the information is being withheld wrongfully. They base this assertion on a telephone conversation with an EOUST official who allegedly indicated the documents were readily available.

While the case was pending, the Wades prepared a second FOIA request directed to the EOUST. This request asked for information to which the EOUST had made reference in a 1986 letter to the Wades. The EOUST request was denied, and the Wades moved for leave to file a supplemental complaint to include this FOIA request in the lawsuit more than a year after the original complaint had been filed. The court denied the motion because of an earlier amendment to the complaint which the Wades were allowed to make, and in consideration of the Wades' statement that the second FOIA request "is not in any way connected with or subjected to the pending federal court case."

We have logically pared the issues that the Wades raise on appeal 91-2538 to questions of whether the district court erred when 1) granting the United States Trustee's motion to dismiss, and 2) denying the Wades' motion for leave to file the supplemental complaint.

A. No. 91-2537

The Wades ask us to reverse the district court's grant of summary judgment for the United States Attorney's office. Summary judgment is appropriate when no genuine issue of material fact exists, and the moving party is entitled to summary judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Because this is a legal question, our review is de novo. All inferences are taken in the light most favorable to the nonmoving party. Id.; Lister v. Stark, 942 F.2d 1183, 1187 (7th Cir.1991). Defeating summary judgment requires more than just a swearing match. Rather, the nonmoving party must present some evidence that a genuine issue of material fact exists. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir.1992).

The appellants' pleadings are not specific regarding whether some or all of the withholding decisions are being challenged. Although they do not argue the application of the exemptions, their "Statement of Issues" raised the following questions, inter alia, "Whether the district court's findings in its Entry and Order of May 30th, 1991, are contrary to the evidence?"; "Whether the district court erred by granting the Government's motion for summary judgment?"; "Whether the district court abused its discretion in the Entry and Order of May 30th, 1991, by denying plaintiffs' motion for relief from summary judgment?". The May 30, 1991 order made new findings and cited to previous findings about the exemptions. We consider the appellants' questions as objections to the withholding decisions in the May 30, 1991 order. See Weisberg v. United States Dept. of Justice, 745 F.2d 1476, 1490 n. 24 (D.C.Cir.1984). Also, review of denial of the Rule 60(b) motion and the awarding of summary judgment calls for an individual examination of the withholding exemptions. Although the appellants' arguments are severely lacking, and the rule of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), does not apply, we construe the appeal liberally and address the exemptions to settle this dispute and diminish the chances of a similar dispute occurring. Cf. Spannaus v. United States Dept. of Justice, 824 F.2d 52, 56 n. 2 (D.C.Cir.1987).

Freedom of Information Act requests, made pursuant to § 552, allow public access to official information shielded from public view. The rule, however, is riddled with exceptions. Among them are those invoked by the United States Attorney in this situation:

(b) This section does not apply to matters that are--

. . . . .

(3) specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

. . . . .

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation ... confidential information furnished only by the confidential source.

The exceptions are to be narrowly construed to further the government's broad disclosure policy. Miller v. Bell, 661 F.2d 623, 626 (7th Cir.1981).

The EOUSA invoked exemption (b)(3) and cited Fed.R.Crim.P. 6(e) to withhold documents...

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