United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 1998 Decided February 24, 1998
No. 96-5068
Rolando Peralta,
Appellant
v.
U.S. Attorney's Office, Central District of California,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 94cv00760)
Maja D. Hazell, student counsel, argued the cause as
amicus curiae, with whom Steven H. Goldblatt, appointed by
the court, Catherine E. Lhamon, and Laura E. Mascheroni,
student counsel, were on the briefs.
Rolando Peralta, appearing pro se, was on the brief for
appellant.
Cynthia A. Schnedar, Assistant United States Attorney,
argued the cause for appellee, with whom Mary Lou Leary,
United States Attorney at the time the brief was filed, and R.
Craig Lawrence, Assistant United States Attorney, were on
the brief. Darya Geetter, Assistant United States Attorney,
entered an appearance.
Before: Silberman, Williams and Sentelle, Circuit
Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Seeking records relating to his
criminal conviction, Rolando Peralta filed a pro se complaint
under the Freedom of Information Act, 5 U.S.C. s 552
("FOIA"), and named a local United States Attorney's Office
as the sole defendant. The Executive Office for United
States Attorneys ("Executive Office"), the entity responsible
for responding to FOIA requests directed to local United
States Attorneys' Offices, participated in the case on behalf of
the named defendant, releasing some documents to Peralta
and referring the processing of others to the Federal Bureau
of Investigation. The district court ordered the Executive
Office dismissed from the case, concluding that it had com-
plied with its obligations under the FOIA. The district court
also granted a motion for a stay that the defendant had filed
on behalf of the FBI, granting the FBI additional time to
process the documents the Executive Office had referred to
it. The district court took these actions even though the
Executive Office and the FBI were not named in the com-
plaint as parties and had not been joined as parties to the
case.
Peralta appealed from the district court's dismissal of the
Executive Office. Peralta asserts that we have jurisdiction
over the district court's order because it is "final" and appeal-
able under 28 U.S.C. s 1291. The government, on the other
hand, challenges our jurisdiction to hear this appeal. It
urges us to treat the Department of Justice--not the local
United States Attorney's Office sued by Peralta, the Execu-
tive Office or the FBI--as the sole defendant before the
district court. Under this approach, the district court's order
left loose ends relating to (would-be) sole defendant Depart-
ment of Justice, which would mean that the order could not
be "final" under 28 U.S.C. s 1291. This argument would
have considerably greater force if the government had suc-
cessfully moved below to substitute the Department of Justice
as defendant. But it did not. Rejecting the government's
attempt to rewrite the history of this case, we conclude that
the district court's order was final because it dismissed the
Executive Office--an entity all parties treated as if it stood in
the shoes of the sole named defendant--from the case. Ac-
cordingly, we assert jurisdiction over the district court's
order, vacate that order, and remand the case to the district
court.
I. Background
In order to make sense of this case, we note preliminarily
that the parties and the district court lost track of the
identity of the "defendant" in this litigation. Rolando Peralta
named one defendant in his FOIA complaint: the United
States Attorney's Office for the Central District of California
("the Central District"). Before the district court, the gov-
ernment's filings occasionally referred to the Central District
as the defendant, but they also referred to the Executive
Office and the FBI as defendants, even though those entities
were never formally added as parties to the case. In re-
sponse to the government's motions, the district court dis-
missed the Executive Office from the case and stayed the
case on behalf of the FBI. The district court took no formal
action with respect to the Central District. To further com-
plicate matters, the government argues on appeal that still
another entity, the United States Department of Justice, was
the sole defendant before the district court. We provide this
abbreviated overview as a prelude to the following confusing
tale.
Rolando Peralta, an inmate at the Federal Correctional
Institution in Terminal Island, California, sought records
relating to his criminal conviction pursuant to the Freedom of
Information Act. Peralta initially requested the documents
by writing to Assistant United States Attorney Carol Gilliam 1
of the Central District of California. When he received no
response to his request within the statutory ten-day period,
Peralta filed a FOIA lawsuit against the Central District,
asserting that the Central District possessed the documents
he wanted. See Complaint at p 4. Peralta's complaint fur-
ther alleged that "Defendant, U.S. Attorney's Office for the
Central District of California, is an agency in the U.S. De-
partment of Justice, a department within the Executive
Branch of the United Stated [sic] Government." Id.
The "defendant" moved the district court to dismiss Peral-
ta's case, claiming it had never received Peralta's FOIA
request. Litigating that motion, the movant referred to itself
as "Defendant" or "Defendant in the above-captioned case."
The case caption in some of its filings identified the "defen-
dant" as "U.S. Attorney's Office"; in other filings, the caption
identified the "defendant" as "United States Attorney's Of-
fice, Central District of California." After that motion was
briefed, the "defendant" discovered that AUSA Gilliam had
received Peralta's request, but apparently did not understand
its significance, and had subsequently lost it. In light of this
development, the district court denied the motion to dismiss
and granted the "defendant's" motion for a ninety-day stay to
"permit the defendant to submit the relevant documents to
the Executive Office of United States Attorneys for process-
ing." The Executive Office is the entity responsible for
fielding FOIA requests sent to individual U.S. Attorney's
Offices throughout the country. See U.S. Attys. Man.
1-9.130.
After the ninety-day stay had expired, the "defendant"--
still calling itself simply the "[d]efendant in the above-
captioned case"--informed the district court that it had fur-
__________
1 The defendant filed one declaration with the district court
identifying this person as "Carol Gilliam," see Supplemental Decla-
ration of John F. Boseker p 1, and another identifying her as "Carol
Gillam." See Declaration of Claire De Longe p 1. Not knowing
which name is correct, we shall refer to her as Carol Gilliam here.
nished Peralta with 414 pages of responsive documents in
their entirety and 28 pages in part, and that it had withheld
396 pages in their entirety pursuant to FOIA exemptions. It
also noted that some 290 pages "were referred to the Federal
Bureau of Investigation (FBI) for review and direct response
to plaintiff." Id. We shall refer to these documents as the
"FBI Documents."
The "defendant" subsequently filed a motion captioned
"The Executive Office for U.S. Attorneys' Motion to Dismiss
or, in the Alternative, For Summary Judgment." The motion
asked the district court to dismiss the Executive Office from
the case on the ground that it had fully complied with its
FOIA obligations. On the same date, the "defendant" filed
another motion captioned "Defendant's Motion for a Stay on
Behalf of the Federal Bureau of Investigation." That motion
said that due to a backlog in processing FOIA requests,
"plaintiff's request [for the FBI Documents] will not reach its
turn in the queue until March, 2002." Accordingly, the
movant requested the district court to enter a stay on behalf
of the FBI to give the FBI time to process Peralta's request
for the FBI Documents.
The district court granted both motions. Agreeing that the
Executive Office had lived up to its FOIA obligations, the
district court granted "defendant's motion for summary judg-
ment" and dismissed the case "as to Defendant Executive
Office of the U.S. Attorneys." In its Memorandum Order,
the district court assumed that the Executive Office need not
respond to Peralta's request for the FBI Documents, stating
that "approximately 200 [sic] pages of documents ... [were]
referred ... to the FBI for processing and direct response to
plaintiff."
On the same day, and in a separate order, the district court
granted the "defendant's" motion for a stay. In its order, the
court said it was ruling on "the motion of defendant Federal
Bureau of Investigation for a stay in this case until March
2002," and ordered the case to be stayed until February 1,
1998 (emphasis added). By doing so, the district court pur-
ported to elevate the FBI to the status of a party to the case,
even though (1) the FBI was not named in the original case
caption; (2) the FBI had never been served with a summons,
complaint, or any other pleading; (3) Peralta never amended
his complaint to add the FBI as a party; (4) the FBI had not
been added as a party through joinder or intervention; (5)
the FBI had never filed a pleading on its own behalf; (6) the
district court docket did not show the FBI as a party to the
case; and (7) Peralta, opposing the motion for a stay, had
correctly reminded the district court that "there are no
proceedings before the courts [sic] against the F.B.I."
Peralta filed a timely notice of appeal from the district
court's order dismissing the Executive Office from the case.2
II. Discussion
Our jurisdiction to review judgments of the district court is
confined to "appeals from all final decisions," 28 U.S.C.
s 1291, and to interlocutory appeals meeting the criteria
stated in 28 U.S.C. s 1292. Put another way, we have no
power to hear an appeal from the district court unless the
district court's decision is "final" or one of the section 1292
exceptions applies. See Everett v. US Airways Group, Inc.,
No. 96-7158, 1998 WL 1799, at *1 (D.C. Cir. Jan. 6, 1998). A
district court's decision is "final" if it "ends the litigation on
the merits and leaves nothing for the court to do but execute
the judgment." Catlin v. United States, 324 U.S. 229, 233
(1945); see also Fed. R. Civ. P. 54(b).
Urging us to dismiss this case for want of appellate juris-
diction, the government argues that we should treat the
Department of Justice as having been the sole defendant
before the trial court. If we accept this point, we could not
appropriately treat the appealed-from order as a "final deci-
sion" pursuant to 28 U.S.C. s 1291 because that order, which
__________
2 A review of the file located in the district court clerk's office
reveals that after the district court dismissed the Executive Office
from the case, both the district court and the "defendant" have
proceeded as if the FBI is the sole defendant in the case, captioning
their recent orders and filings: Rolando Peralta v. Federal Bureau
of Investigation.
did not resolve the fate of the FBI Documents, did not end
the litigation on the merits.
First, the government argues that the DOJ must have been
the sole defendant below because the FOIA only applies to
the DOJ, not to DOJ components FBI and Executive Office.
Under the FOIA,
the term "agency" as defined in section 551(1) of this title
includes any executive department, military department,
Government corporation, Government controlled corpora-
tion, or other establishment in the executive branch of
the Government (including the Executive Office of the
President), or any independent regulatory agency.
5 U.S.C. s 552(f). The reference to "section 551(1) of this
title" is to the definitional section of the Administrative
Procedure Act, which states that " 'agency' means each au-
thority of the Government of the United States, whether or
not it is within or subject to review by another agency...."
In any event, because the government raised this argument
for the first time on appeal, we shall not consider it. See
District of Columbia v. Air Florida, Inc., 750 F.2d 1077,
1084-85 (D.C. Cir. 1984).
The government is free to reassert this argument on
remand if it desires. However, we suspect that the FBI is
subject to the FOIA in its own name. We have observed
previously that the FBI is "clearly ... covered" by the FOIA,
McGehee v. CIA, 697 F.2d 1095, 1108 (D.C. Cir. 1983). The
FOIA itself appears to contemplate that the FBI is subject to
its provisions. See 5 U.S.C. s 552(c)(3) (providing that the
FBI may treat certain classified information as not subject to
FOIA disclosure). And, the FBI has litigated numerous
FOIA cases in its own name before the Supreme Court, this
court, and other circuit courts, with the DOJ or one of its
components appearing as counsel. See, e.g., FBI v. Abram-
son, 456 U.S. 615 (1982) (Solicitor General's Office represent-
ing FBI); Williams v. FBI, 69 F.3d 1155 (D.C. Cir. 1995)
(U.S. Attorney's Office for the District of Columbia represent-
ing FBI and DOJ); Quinon v. FBI, 86 F.3d 1222 (D.C. Cir.
1996) (U.S. Attorney's Office for the District of Columbia
representing FBI); Ferguson v. FBI, 83 F.3d 41 (2nd Cir.
1996) (U.S. Attorney's Office for the Southern District of New
York representing FBI); Jones v. FBI, 41 F.3d 238 (6th Cir.
1994) (DOJ representing FBI); Schiffer v. FBI, 78 F.3d 1405
(9th Cir. 1996) (DOJ representing FBI and DOJ). Indeed, we
note that, despite the government's position that district
courts lack jurisdiction over the FBI as a named agency-
party in FOIA cases, the FBI is currently participating as a
litigant before the district court in this very case. See
footnote 2, above.
In addition to arguing that the district court had jurisdic-
tion over the DOJ alone, the government also asserts that the
DOJ was the de facto defendant before the district court.
Apparently a "de facto defendant" is a non-party which an
appellate court decides to treat as if it had been a party. The
government says that we recognized de facto party status in
Monarch Life Ins. Co. v. Elam, 918 F.2d 201, 203 (D.C. Cir.
1990). In that case, a named party, Elam, agreed to settle
her personal injury case in exchange for a $19,000 payment
from the defendant's insurance company. Citing an earlier
judgment against Elam, a different insurance company filed a
lawsuit against her, asserting its own interest in the settle-
ment fund. Elam's lawyer believed he was entitled to a cut of
that payment as a result of a contingent fee agreement with
Elam. The lawyer never filed a motion in his own name;
instead, he piggybacked his personal claim onto pleadings
filed on Elam's behalf. We observed in dicta that the lawyer
"might well be regarded as a de facto intervenor" before the
district court because he "was present in fact throughout
every stage of the proceedings below (though not as a named
party)" and because Elam herself lacked any "real substan-
tive interest" in the settlement fund. Id. at 203. However,
we found the question of the lawyer's "de facto intervenor"
status to be academic, because it had not been raised on
appeal. Id. In other words, we simply mentioned the con-
cept of de facto party status, without passing on its validity.
Accordingly, we reject the government's attempt to treat this
dicta as precedent for this circuit's recognition of that amor-
phous concept.
Although we do not recognize de facto party status today, it
is apparent that the DOJ has not established that it would
qualify as a de facto defendant in this case even if we thought
such a thing existed.3 The record does not demonstrate that
the DOJ behaved as a party in the district court. On July 19,
1995, the "defendant" filed with the district court:
.A motion entitled "The Executive Office for U.S. Attor-
neys' Motion to Dismiss or, in the alternative, for Sum-
mary Judgment." The case caption identifies the defen-
dant as "U.S. Attorney's Office."
.A "Memorandum in Support of Defendants' Motion for
Summary Judgment." The case caption identifies the
defendant as "U.S. Attorney's Office."
.Fourth Declaration of John Boseker. The case caption
identifies the defendant as "United States Attorney's
Office, Central District of California."
."Defendant's Motion for a Stay on Behalf of the Federal
Bureau of Investigation." In this motion, "defendants
request that this case be stayed on behalf of the FBI
until March, 2002, ... [at which time] the defendant
should be in a position to provide the Court with addi-
tional information on the time required for processing."
Looking at this single day's filings, one wonders which
governmental entity or entities were participating in the
litigation. The Central District? The Executive Office? The
FBI? Some combination of the above? The government
asks us to extract from this morass the principle that the
DOJ "actually participated in the proceedings below" as the
sole defendant. We see no basis in the record for doing so.
Although the record reveals that this somewhat schizophrenic
"defendant" may have believed that it was one or more of the
__________
3 The government argues in the alternative that we should treat
the FBI as a de facto defendant, but never explains why we should
do so. We reject this argument because it is insufficiently devel-
oped. See Fed. R. App. P. 28(a)(6); United States v. Marshall, No.
96-3053, 1998 WL 1798, at *8 (D.C. Cir. Jan. 6, 1998).
above entities, the "defendant" never identified itself as the
DOJ. Even more importantly, unlike the non-party lawyer in
Elam, the DOJ did nothing in its own name before the
district court, whether as a party or not. In light of these
key facts, the government's argument that we should treat
the DOJ as the sole "de facto" defendant amounts to nothing
more than wishful thinking.
When the district court dismissed the Executive Office
from the case, all of the parties (as well as the district court)
assumed that the Executive Office was the alter ego of the
named defendant, Central Division, and had litigated the case
on its behalf. We make the same assumption here. Because
the district court's order effected the dismissal of the only
defendant from the case, that order was a final decision
pursuant to 28 U.S.C. s 1291, and we may assert jurisdiction
over it. The fact that the district court concurrently entered
a stay on behalf of a non-party does not render that order any
less final.
Having concluded that we have jurisdiction over the district
court's judgment, we reverse it. Although the district court
order dismissed the only defendant party in this case, it did
not resolve all of the issues. The district court made no
finding that the requested FBI Documents were either sub-
ject to disclosure or exempt from disclosure under the FOIA;
rather, it apparently approved of the Executive Office's refer-
ral of these documents to non-party FBI for processing. We
find this to be reversible error and remand to the district
court.
On remand, the district court's first task is to impose order
on this chaotic record, and resolve who the defendant or
defendants are in this case. The district court must confront
another question on remand: was the Executive Office justi-
fied in referring the FBI Documents to the FBI for process-
ing? In other words, did this referral procedure result in the
improper "withholding" of the FBI Documents? See 5 U.S.C.
s 552(a)(4)(B). To determine if it did, a reviewing court must
ask if the "net effect [of the referral procedure] is significant-
ly to impair the requester's ability to obtain the records or
significantly to increase the amount of time he must wait to
obtain them." McGehee, 697 F.2d at 1110. Such a "with-
holding" will be considered "improper" unless the agency can
offer a reasonable explanation for its procedure. Id. In
McGehee, we emphasized that there is no "bright line" test
for evaluating a given referral procedure, but we outlined a
model procedure to assist courts in doing so. Id. at 1111.
Under that framework, a court considers whether the origi-
nating agency has the "intent to control" the contested rec-
ords, and whether the referral is "prompt and public." Id. at
1111-12; see also Paisley v. CIA, 712 F.2d 686, 691-92 (D.C.
Cir. 1983).
Neither party cited Paisley or McGehee to the district
court, and the district court mentioned neither case in its
order approving of the referral of the FBI Documents to the
FBI for processing. Nor did the district court make any
findings as to whether the referral procedure used in this
case was appropriate. On remand, the district court must
evaluate the referral procedure in light of these cases,4 its
own resolution of which entity or entities are proper agency
defendants in this case, and a DOJ regulation (promulgated
after we decided Paisley and McGehee) providing for the
referral of records to originating components or agencies
under certain circumstances.5 See 28 C.F.R. s 16.4(d).
III. Conclusion
Federal Rule of Civil Procedure 10(a) provides that "the
names of all the parties" must appear in complaints filed in
federal court. The Federal Rules also provide formal means
of adding parties to a federal lawsuit that were not named in
the complaint. See Fed. R. Civ. P. 19(a); 20(a); 25(c). At
__________
4 The district court may consider Peralta's argument, raised for
the first time before us in his reply brief, that our model procedure
has been undercut by United States Dep't of Justice v. Tax Ana-
lysts, 492 U.S. 136, 145 (1989).
5 The district court may consider Peralta's argument, raised for
the first time on appeal, that this regulation is invalid because it
conflicts with Paisley and McGehee.
the government's request, the district court dismissed the
case against an entity that all parties treated as the alter ego
of the original sole defendant. Also at the government's
request, the district court stayed the case on behalf of
another entity that was not named in Peralta's complaint and
was not added to the case through formal means. These
actions led to the tangled record we have before us, to our
appointment of Georgetown's able Appellate Litigation Pro-
gram as amicus to help sort out the confusion, and to our own
efforts to make sense of the jurisdictional issues raised by
this case. With some regret, we note that all of these things
could have been avoided if the government and the district
court had paid attention to the elemental issue of who the
parties were in this litigation.
We vacate the judgment of the district court and remand
for further proceedings consistent with this opinion.