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Shapiro v. Department of Justice

United States District Court, District of Columbia

October 11, 2016



          JAMES E. BOASBERG United States District Judge.

         When it 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 part.

         I. Background

         For 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).

         Upon 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.

         One 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.

         The parties have now cross-moved for summary judgment on the adequacy of OSG's search.

         II. Legal Standard

         Summary 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).

         FOIA 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).

         III. Analysis

         Congress 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)).

         In the 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.

         A. Adequ ...

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