United States District Court, District of Columbia
E. BOASBERG United States District Judge.
comes to the Supreme Court, Plaintiff Ryan Shapiro believes
that Yogi Berra had it wrong. While the Yankees catcher
opined, “It ain't over 'til it's over,
” Shapiro contends that for the Justices, it's not
even over then. Relying on recent New York Times and
Harvard Law Review articles, Plaintiff points out that the
Court keeps revising its opinions even after publication. He
therefore filed this Freedom of Information Act suit against
the U.S. Department of Justice seeking records relating to
such changes. The Office of the Solicitor General (OSG), the
Department's representative at the Supreme Court,
produced two responsive letters and now moves for summary
judgment. Maintaining that OSG's search was deficient,
Shapiro opposes and files his own Cross-Motion for Summary
Judgment. The Court will grant each in part and deny each in
those readers whose subscriptions to the Harvard Law Review
may have lapsed, the Court reminds them that, a couple of
years ago, Adam Liptak wrote a New York Times
article discussing a study by Harvard Professor Richard
Lazarus entitled “The (Non)Finality of Supreme Court
Opinions, ” 128 Harv. L. Rev. 540 (2014), which
described how the Supreme Court continued to make corrections
to its opinions months and years after their issuance.
See Adam Liptak, Final Word on U.S. Law Isn't:
Supreme Court Keeps Editing, N.Y. TIMES, May 25, 2014, at
¶ 1. Seizing on this news, Plaintiff Shapiro filed a
FOIA request seeking records maintained at DOJ, particularly
at OSG, related to both “change pages” and
“changes between versions of Supreme Court opinions
or changes to published supreme court [sic]
opinions, including but not limited to erratum
[sic].” ECF No. 10-2 (Declaration of Valerie
Hall Yancey), Att. A (FOIA Request) at 1. The term
“change pages” appears in the Lazarus article and
“‘refer[s] to the marked up pages that result
from editing and review within the Court following the
initial opinion announcement (bench and slip opinions) and
again after the publication of the preliminary print. They
are literally the pages that the Court sends to the publisher
of the United States Reports to indicate what
changes to make for the “final” and
“official” version.'” Pl. MSJ/Opp. at 2
(quoting Lazarus article at 581).
receipt of the request, OSG ran a number of queries through
its Automated Docket System (ADS), which is “an
internal docketing system used to track case filings between
OSG and the Court. The system contains information related to
cases before the Court, appeal recommendations (adverse
decisions), authorized petitions, and unnumbered matters . .
. .” Yancey Decl., ¶ 9. “ADS maintains
tracking information on all such cases, regardless of whether
the case documents/files are still physically located within
the OSG office or have been transferred elsewhere and are no
longer in OSG custody.” ECF No. 18-1 (Supplemental
Declaration of Valerie Hall Yancey), ¶ 8. The search
located no responsive records. See Yancey Decl.,
¶ 10. OSG also “electronically searched its
‘OSG OFFICE POLICIES' folder on the OSG network
shared drive . . ., which contains internal policy directives
or guidelines.” Yancey Supp. Decl., ¶ 5. This
search, too, yielded no responsive materials. Id.
Deputy Solicitor General Edwin Kneedler thereafter sent an
email to “current OSG attorneys and asked whether
anyone suggested/proposed a change to the Court. The email
also asked whether anyone had any record consisting of,
referring to, or relating to the ‘change pages' of
the Court; or changes between versions of Court opinions, or
changes in published opinions, including errata.”
Yancey Decl., ¶ 11.
attorney responded that he had telephoned the Court with a
suggested change, but had not sent a written request, and
another attorney provided an “errata” letter in a
particular case, a copy of which was produced to Plaintiff.
Id., ¶ 12. In addition, after the date of its
search, Deputy Solicitor General Michael Dreeben also sent a
letter to the Supreme Court suggesting a minor revision to an
opinion, and this letter was also produced. See
Yancey Supp. Decl., ¶ 18. OSG also noted that,
presumably at the conclusion of a case, it returns
“files containing other material concerning the case to
the Division of the Justice Department or government agency
that has subject matter responsibility for the case.”
Yancey Decl., ¶ 13.
parties have now cross-moved for summary judgment on the
adequacy of OSG's search.
judgment may be granted if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is
“material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty
Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party. See Scott v. Harris, 550 U.S. 372,
380 (2007); Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion” by “citing to particular parts of
materials in the record” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1). The moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
cases typically and appropriately are decided on motions for
summary judgment. See Brayton v. Office of U.S. Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA
case, the agency may obtain summary judgments on the basis of
affidavits that are “relatively detailed and
non-conclusory, and . . . submitted in good faith.”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (internal quotation marks and citation
omitted; ellipses in original). Such “affidavits are
accorded a presumption of good faith, which cannot be
rebutted by purely speculative claims about the existence and
discoverability of other documents.” Id.
(internal quotation marks and citation omitted).
enacted FOIA in order to “pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny.” Dep't of Air Force v.
Rose, 425 U.S. 352, 361 (1976) (citation omitted).
“The basic purpose of FOIA is to ensure an informed
citizenry, vital to the functioning of a democratic society,
needed to check against corruption and to hold the governors
accountable to the governed.” John Doe Agency v.
John Doe Corp., 493 U.S. 146, 152 (1989) (citation
omitted). The statute provides that “each agency, upon
any request for records which (i) reasonably describes such
records and (ii) is made in accordance with published rules .
. . shall make the records promptly available to any
person.” 5 U.S.C. § 552(a)(3)(A). Consistent with
this statutory mandate, federal courts have jurisdiction to
order the production of records that an agency improperly
withholds. See 5 U.S.C. § 552(a)(4)(B);
Dep't of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 755 (1989). “Unlike the
review of other agency action that must be upheld if
supported by substantial evidence and not arbitrary or
capricious, the FOIA expressly places the burden ‘on
the agency to sustain its action' and directs the
district courts to ‘determine the matter de
novo.'” Reporters Comm., 489 U.S. at 755
(quoting 5 U.S.C. § 552(a)(4)(B)). “At all times
courts must bear in mind that FOIA mandates a ‘strong
presumption in favor of disclosure' . . . .”
Nat'l Ass'n of Home Builders v. Norton, 309
F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep't of State
v. Ray, 502 U.S. 164, 173 (1991)).
current Cross-Motions, there is but one question presented:
Was OSG's search for responsive documents adequate? In
providing an answer, the Court first considers the
Defendant's explanation of the contours of its search. It
next addresses Plaintiff's two principal objections.