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Clemente v. Federal Bureau of Investigation

United States Court of Appeals, District of Columbia Circuit

August 11, 2017

Angela Clemente, Appellant
v.
Federal Bureau of Investigation, et al., Appellees

          Argued January 12, 2017

         Appeal from the United States District Court for the District of Columbia No. 1:08-cv-01252

          James H. Lesar argued the cause and filed the briefs for appellant.

          Daniel P. Schaefer, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney.

          Before: Srinivasan and Pillard, Circuit Judges, and Edwards, Senior Circuit Judge.

          OPINION

          SRINIVASAN CIRCUIT JUDGE.

         Appellant Angela Clemente, acting under the Freedom of Information Act, sought records from the FBI pertaining to a former informant. Clemente later initiated this FOIA action against the FBI in the district court. Over the course of several years of litigation, the district court granted summary judgment to the FBI on the adequacy of its search for responsive records and its invocation of FOIA's disclosure exemption for law-enforcement records. In addition, the court twice denied Clemente's motions for interim attorney fees. The court eventually dismissed the case after Clemente failed to file objections to the government's latest explanation for withholding information.

         Clemente appeals the district court's decisions to grant summary judgment to the FBI, deny her motions for interim attorney fees, and dismiss her remaining claims. Given the limited scope of Clemente's FOIA request, we reject her challenges to the adequacy of the search. We also affirm the district court's remaining decisions. The court correctly found that the records in this case met the threshold for FOIA's law-enforcement exemption, and the court acted within its authority in denying Clemente's motions for interim attorney fees and in dismissing the remainder of the case.

         I.

         Clemente has spent years researching the activities of Gregory Scarpa, Sr., a high-ranking Mafia member and FBI informant. In furtherance of those efforts, on April 12, 2008, Clemente sent a letter to the Record/Information Dissemination Section of FBI Headquarters, requesting "the entire UNREDACTED FBI file of Gregory Scarpa Sr." Letter from Angela Clemente, Forensic Intelligence Analyst, to the FBI, Record/Info. Dissemination Section (Apr. 12, 2008). On May 21, 2008, she sent another copy of that request to the FBI.

         On July 9, 2008, Clemente's attorney sent the FBI a letter stating that he wished to "clarify" her request. Letter from James H. Lesar, Attorney, to David M. Hardy, Section Chief, FBI Record/Info. Dissemination Section (July 9, 2008). The letter stated:

Initially, we wish to clarify her request in certain respects. First, Ms[.] Clemente's request for the file on Mr. Gregory Scarpa, Sr. is directed to any informant file on Mr. Scarpa, including in particular any Top Echelon ("TE") Informant file. Secondly, Ms. Clemente wishes to limit this request to the first 500 pages which fall within the following three categories.

Id. The letter went on to describe those three categories: records pertaining to New Orleans Mafia Chief Carlos Marcello, records about any trip Scarpa made to Costa Rica, and "all records in any informant file in chronological sequence." Id. Clemente's attorney also asked to know the number of additional responsive pages beyond the 500-page limit.

         Clemente alleges that, on the same day, her lawyer also sent the FBI a second letter requesting information about Scarpa. That letter had a broader scope than the first one. The second letter requested "all records on or pertaining to Gregory Scarpa" and contained detailed instructions to the FBI on how to conduct its search. Second Letter from James H. Lesar, Attorney, to David M. Hardy, Section Chief, FBI Record/Info. Dissemination Section (July 9, 2008).

         On July 21, 2008, Clemente brought this suit in district court, seeking to compel the FBI to respond to her request. Neither her original nor her first amended complaint mentioned a second July 9, 2008, letter. On October 10, 2008, David M. Hardy, the Chief of the FBI's Record/Information Dissemination Section, sent a letter confirming that the FBI had received Clemente's clarification (i.e., the first July 9 letter) and had located about 1, 170 pages of potentially responsive records. The letter also quoted $107 in duplication costs for those records. On November 21, 2008, after Clemente's lawyer sent the FBI a check for $107, the agency released the first 500 pages from Scarpa's informant file. In March 2009, the FBI sent Clemente an additional 653 pages of responsive records from that file.

         Over the next few years, the parties went through three rounds of summary judgment motions. The FBI filed several affidavits-commonly called Vaughn indices, see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)-explaining the agency's decision to withhold certain records. The case was originally assigned to Judge Friedman, but, on September 1, 2011, it was transferred to Judge Rothstein. See Letter from James H. Lesar, Attorney, to Mark J. Langer, Clerk, U.S. Court of Appeals for the D.C. Circuit 5 (Aug. 24, 2016) (Lesar Letter).

         The district court granted summary judgment to the FBI with regard to the adequacy of its search. See Clemente v. FBI, 741 F.Supp.2d 64, 77, 79-80 (D.D.C. 2010). The court also concluded that the FBI satisfied its burden of showing that certain records had been compiled for law enforcement purposes and thus could be withheld from disclosure if the Bureau submitted an appropriate Vaughn index explaining why disclosure would cause one of the harms enumerated in 5 U.S.C. § 552(b)(7). Id. at 84. In 2013, and again in 2015, the district court denied Clemente's motions for an interim award of attorney fees. See Clemente v. FBI, 166 F.Supp.3d 11, 14 (D.D.C. 2015), reconsideration denied, No. 1:08-cv-1252, 2015 WL 10738604 (D.D.C. Dec. 1, 2015). After Clemente failed to file objections to the FBI's latest Vaughn index by a court-imposed deadline, the district court dismissed the case. Clemente appealed to this court and also filed a motion for a final award of attorney fees in the district court.

         II.

         Before addressing the merits of Clemente's claims, we first consider a challenge to the district court's jurisdiction. The orders on appeal in this case were entered by Judge Rothstein, who sits on the United States District Court for the Western District of Washington but was designated and assigned to the United States District Court for the District of ...


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