United States Court of Appeals, District of Columbia Circuit
January 12, 2017
from the United States District Court for the District of
Columbia No. 1:08-cv-01252
H. Lesar argued the cause and filed the briefs for appellant.
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.
SRINIVASAN CIRCUIT JUDGE.
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
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
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.
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.
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).
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.
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).
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.
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 ...