United States Court of Appeals, District of Columbia Circuit
Argued September 8, 2015
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Appeal from the United States District Court for the District of Columbia. (No. 1:11-cv-02072), (No. 1:11-cv-02073).
Kelly B. McClanahan argued the cause and filed the briefs for appellant.
Mark S. Zaid was on the brief for amicus curiae J. William Leonard in support of appellant.
H. Thomas Bryon III argued the cause for appellees. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Vincent Cohen, Jr., Acting U.S. Attorney, and Matthew Collette, Attorney.
Before: ROGERS, BROWN and SRINIVASAN, Circuit Judges.
Rogers, Circuit Judge
Sharif Mobley seeks information relating principally to his detention in Yemen from four federal agencies. After submitting requests pursuant to the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, and the Privacy Act, id. § 552a, Mobley filed two lawsuits to compel disclosure. The district court granted summary judgment to the agencies and denied Mobley's motion for reconsideration. Although his appeal presents a thorny jurisdictional question, upon determining that this court has jurisdiction to consider the appeals in both of his cases, we conclude that Mobley's contentions fail on the merits under a straightforward application of our precedent. We therefore affirm.
Mobley, a United States citizen, Cmpt. ¶ 3, has been detained in Yemen since January 26, 2010. According to one of his attorneys, he was abducted from the streets of Sana'a, Yemen's capital city, by eight armed men who forced him into a van, shooting him twice in the process. Decl. Cori A. Crider, ¶ ¶ 1, 8-16 (July 21, 2010). Mobley had lived in Sana'a with his family since 2008, but in January 2010, he contacted U.S. Embassy officials to arrange for return to the United States. Id. ¶ ¶ 11-13. While in custody, Mobley claims that he was interrogated by agents from the Federal Bureau of Investigation (" FBI" ), the Defense Department, and other unspecified U.S. federal agencies. Id. ¶ ¶ 32-51. Although it remains unclear to Mobley why he was initially detained, id. ¶ 11, he is being held on allegations that he shot two hospital guards -- one fatally -- during an attempted escape while he was being treated for injuries sustained during his abduction and detention, id. ¶ ¶ 26-54.
On July 22, 2010, Mobley submitted an information request, pursuant to FOIA and the Privacy Act, to various federal agencies, including the FBI, the Central Intelligence Agency (" CIA" ), the Department of Defense, and the Department of State. He sought information on: (1) his abduction; (2) the involvement of various federal agencies in his abduction and interrogation; and (3) the " wider pattern of U.S.-sponsored sweeps and proxy detention in Yemen from January 2010, of which [his] seizure is a part." FOIA/Privacy Act Request at 2 (July 22, 2010). In addition, he sought " all records in any way relating to, pertaining to, or mentioning [Mobley] by any and all persons or entities, including all persons acting on behalf of the United States." Over a year later, Mobley's counsel sent two e-mails to the FBI,
before it had responded to his original request, asking that it search particular repositories of analog and digital records, which we refer to as record systems.
On November 22, 2011, Mobley filed two lawsuits in the federal district court. See 5 U.S.C. § 552(a)(4)(B); id. § 552a(g)(1)(B). In the first he sued the Justice Department and the Defense Department. The following spring the FBI partially released to Mobley 85 pages of responsive records, withholding portions pursuant to FOIA Exemptions 1, 6, and 7(C) and Privacy Act Exemption (j)(2). See Decl. Dennis J. Argall, Assistant Section Chief, Records/Info. Dissemination Section, FBI, ¶ ¶ 24, 34 (June 29, 2012) (" First Argall Decl." ). We will refer to this lawsuit as the FBI case. In the second lawsuit, he sued the CIA and the State Department. Although Mobley sent the CIA the same information request that he sent the FBI, the Defense Department, and the State Department, he also sent the CIA a separate request, on August 15, 2011, for " all [CIA] records about Mr. Mobley and [his wife]." The appeal in his second lawsuit involves only the CIA's response to the August 15 request, and we will refer to the second lawsuit as the CIA case. The CIA released some responsive records, which the Defense Intelligence Agency (" DIA" ) had referred to it in response to Mobley's information requests to the Defense Department. Decl. Michele L. Meeks, Chief, Pub. Info. Programs Div., CIA, ¶ ¶ 5-9 (Sept. 4, 2012). The CIA withheld six of the DIA documents under FOIA Exemption 3, id. ¶ 7, and as not subject to disclosure under the Privacy Act, Decl. Alesia Y. Williams, Chief, FOIA Servs. Section, DIA, ¶ 4 (Oct. 12, 2012).
The district court ruled on the government's motions for summary judgment in both cases in a single memorandum opinion of February 7, 2013. See Mobley v. CIA, 924 F.Supp.2d 24, 74 (D.D.C. 2013). The court granted summary judgment in full to the defendants, with the exception of the CIA, and in the FBI case entered " a final and appealable Order." Although it rejected most of Mobley's challenges to the CIA's search for responsive records and decisions to withhold certain information, the district court ordered the CIA to conduct a supplemental search in the Director of National Intelligence's Open Source Center (" OSC" ) and to release any non-exempt records it located, id. at 37-38. The CIA subsequently filed a joint notice regarding OSC records. On June 7, 2013, the district court granted summary judgment in full in the CIA case and directed that case be closed. Four days later, the district court consolidated Mobley's two lawsuits.
On June 17, 2013, Mobley moved for reconsideration on the grounds that the district court erred by failing to: (1) require the FBI to search its e-mail systems; (2) require the CIA to disclose six of the documents referred to it by the DIA; and (3) conduct in camera review of two pages of responsive records withheld by the FBI. The district court treated Mobley's motion as filed pursuant to Federal Rule of Civil Procedure 59(e), and denied reconsideration on August 7, 2013.
Mobley appeals. Our review of the grant of summary judgment is de novo. Morley v. CIA, 508 F.3d 1108, 1114, 378 U.S.App.D.C. 411 (D.C. Cir. 2007). Our review of the denial of a Rule 59(e) motion is for abuse of discretion, see Messina v. Krakower, 439 F.3d 755, 759, 370 U.S.App.D.C. 128 (D.C. Cir. 2006), as is the decision not to inspect in camera documents withheld under a FOIA exemption, Larson
v. Dep't of State, 565 F.3d 857, 869-70, 385 U.S.App.D.C. 394 (D.C. Cir. 2009). In light of our recent decision in DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015), Mobley has withdrawn his appeal regarding the DIA and several challenges to the district court's rulings regarding the CIA.
The court must first address the threshold question of whether it has jurisdiction to consider Mobley's challenges to the district court's grants of summary judgment in the FBI and the CIA cases. Our review of jurisdictional issues is de novo, Foretich v. ABC, 198 F.3d 270, 273, 339 U.S.App.D.C. 98 (D.C. Cir. 1999), and this includes whether Mobley's Rule 59(e) motion was timely filed, Winslow v. FERC, 587 F.3d 1133, 1135, 388 U.S.App.D.C. 375 (D.C. Cir. 2009). The jurisdictional issue is complicated by the district court's decision not to consolidate the FBI and CIA cases until after it had granted summary judgment in both cases. It is also complicated by the fact that upon granting summary judgment in the FBI case on February 7, 2013, the district court also entered " a final and appealable Order." See Fed.R.Civ.P. 58(a). The district court did not enter such an order in the CIA case until it granted summary judgment in full on June 7, 2013. Mobley filed his notice of appeal on September 16, 2013. The timeliness of Mobley's appeal therefore depends on whether his motion for reconsideration under Rule 59(e) was timely filed. If so, then his time to file a notice of appeal was tolled. Fed. R. App. P. 4(a)(4)(A)(iv). If not, then Mobley's appeal of summary judgment in the FBI case was also untimely, and this court lacks jurisdiction.
Because timing is central to the jurisdiction question, a brief chronology of the relevant events follows. As noted, on February 7, 2013, the district court granted summary judgment in the FBI case and entered a final, appealable order, see Fed.R.Civ.P. 58(a). At the same time, in the CIA case, it granted summary judgment to the State Department, but granted summary judgment only in part to the CIA, remanding for the CIA to conduct a supplemental records search. Shortly thereafter, on February 19, the district court denied a consent motion to consolidate the cases without prejudice, on the ground that the cases were not in the same procedural posture; the FBI case was closed while the CIA case remained open.
A week later, Mobley filed, in light of the " high degree of overlap between these cases," a motion to stay the FBI case until the district court had finally resolved the CIA case, so that the " motions for reconsideration or appeals to the D.C. Circuit" in both cases could be filed and adjudicated at the same time. The district court granted the motion and stayed the FBI case until " a final appealable order has been issued" in the CIA case.
On June 7, 2013, the district court granted summary judgment in full in the CIA case and entered a final, appealable order. It also lifted the stay in the FBI case. Four days later, it consolidated the two cases.
On June 17, 2013, Mobley moved for partial reconsideration, pursuant to Federal Rules of Civil Procedure 59(e) and 60(b). Although the government neither opposed Mobley's motion for a stay nor ...