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Scherer v. Kelley

decided: September 8, 1978.

ANTHONY J. SCHERER, JR., PLAINTIFF-APPELLANT,
v.
CLARENCE M. KELLEY, ETC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 C 1053 - John Powers Crowley, Judge.

Before Swygert and Tone, Circuit Judges, and Jameson, Senior District Judge.*fn1

Author: Swygert

Plaintiff Anthony J. Scherer, Jr. brought this action pursuant to the Freedom of Information Act, 5 U.S.C. ยง 552, to compel four federal agencies to release documents allegedly relevant to him. The issue on appeal is whether the district court erred when, following an In camera examination, it found that the documents were properly withheld under certain exemptions contained in section 552(b) of the Act.*fn2

While the outcome of Scherer's appeal hinges on this court's interpretation of the relevant exemptions of the Act and on our review of the district court's application of those exemptions to the documents in question, it is first necessary to consider a jurisdictional question that surfaced on appeal. At issue is the Government's contention that Scherer properly appealed only that portion of the district court's finding that pertains to the FBI. The Government thereby argues that this court lacks jurisdiction to consider those documents compiled by the other three agencies. To understand this dispute, the somewhat complicated procedural history of the case must be set forth in detail.

I

Between May and August 1975 Scherer contacted the FBI, the Customs Service, the Treasury Department Bureau of Alcohol, Tobacco and Firearms, and the Secret Service and requested that each agency provide him with all the documents in its files which concerned him.*fn3 After a series of correspondence with Scherer, each agency compiled the requested material and examined it to determine whether any portion should be excised because of its inclusion within one of the sections of the Freedom of Information Act which provided for an exemption from disclosure. After each agency deleted what it believed to be exempted material, it forwarded the remaining documents to Scherer with an explanation of the action it had taken.*fn4

After unsuccessfully appealing each agency's action through administrative channels, Scherer, acting Pro se, commenced the following action in the United States District Court for the Northern District of Illinois, attempting to obtain those materials the agencies had withheld. On March 18, 1978 Scherer filed a complaint against the Customs Service. That action was assigned cause no. 76 C 1052. At the same time Scherer filed a complaint against the FBI. That action was assigned cause no. 76 C 1053. Each case was assigned to a different district judge and was initially treated as an entirely separate case. On October 28, cause no. 76 C 1053 (with the FBI as defendant) was reassigned to the judge who was at the time hearing cause no. 76 C 1052 (the Customs Service case). No formal order of consolidation was made, however, to officially combine the two cases and, therefore, the two case numbers continued to coexist. In an attempt to eliminate confusion, the district judge, who was now assigned both cases, allowed Scherer to amend his complaint which had originally named only the Customs Service as defendant, I. e., cause no. 76 C 1052. By such amendment Scherer added the FBI, the Bureau of Alcohol, Tobacco and Firearms, and the Secret Service as defendants so that now, cause no. 76 C 1052 included all four agencies. Cause no. 76 C 1053 remained intact with only the FBI as defendant.

After examining the documents from the four agencies, the district court entered the following order on the record of Both cause numbers:

The Court has examined all of the documents presented by the four government agencies defending this action (Bureau of Customs, the Federal Bureau of Investigation, the Secret Service Division of the Department of the Treasury, and the Bureau of Alcohol, Tobacco and Firearms) and finds after an In camera inspection that those documents withheld from the plaintiff were properly exempt from disclosure under the exemptions claimed pursuant to 5 USC 552(b). The plaintiff is not entitled to an index of the withheld documents nor to his costs in the case. Therefore, this cause will be dismissed with prejudice.

After his motion for reconsideration was denied, Scherer, still acting Pro se, filed a notice of appeal. In the caption of that notice Scherer listed the defendants as the "Federal Bureau of Investigation, Et al.," and labelled the notice as appealing "No. 76 C 1053," although that case number named only the one agency defendant, the FBI.

After filing his notice of appeal Scherer obtained counsel. However, nothing was done to resolve the confusion which still remains because of the two cause numbers. In addition, only the record in no. 76 C 1053, pertaining to the FBI, was originally transferred to this court. After an order of this court dated December 19, 1977, some, but apparently not all, of the documents in the district court record of no. 76 C 1052 were transferred to this court as a supplement to the record on appeal of no. 76 C 1053. Just prior to oral argument, however, the Government moved to supplement the record further with the affidavits of the representatives for the Customs Service and the Bureau of Alcohol, Tobacco and Firearms which were part of the record in no. 76 C 1052 before the district court. The Government stated that while it still contends that only the FBI is involved in this appeal, if this court determines that the documents from all four agencies must be considered, such consideration must be conducted in light of the affidavits detailing those exemptions upon which each agency relied. This court by order of April 10 deferred ruling upon the Government's motion until after oral argument. We turn now to a consideration of that motion in light of the jurisdictional snarl with which it is entangled.

II

Rule 3 of the Federal Rules of Appellate Procedure sets forth those procedures an appellant must follow in order to transfer his case from a federal district court to a court of appeals.*fn5 Although those requirements have been made as burdenless as possible while continuing to balance a losing party's need for appellate review against the prevailing party's right to seek repose in his favorable judgment, unintentional mistakes are occasionally made in the content of a notice of appeal. Such mistakes are most prevalent where, as in the instant case, an appellant is acting pro se. For this reason notices of appeal are entitled to a liberal construction where the intent of the appellant is apparent and the adverse party is not prejudiced. See Foman v. Davis, 371 U.S. 178, 181, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962).

In this case, Scherer clearly intended to appeal the district court's finding as it pertained to all four agencies. He captioned the defendants as the "Federal Bureau of Investigation, Et al." which he could reasonably have believed was sufficient to include the four agencies.*fn6 Additionally, it was reasonable for Scherer to believe that the "et al." would alert the Government attorney that Scherer intended to seek appellate review of all documents concerning him. Since Scherer had intended to secure all government documents from the beginning of ...


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