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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2003 Decided December 19, 2003
No. 02-5391
SONYA G. STEWART,
APPELLANT
v.
DONALD L. EVANS, SECRETARY OF COMMERCE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 00cv01241)
Dale L. Wilcox argued the cause for appellant. On the
briefs were Larry Klayman and Paul J. Orfanedes.
Richard Montague, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Peter D. Keisler, Assistant Attorney General, Roscoe C. How-
ard, Jr., U.S. Attorney, and Barbara L. Herwig, Assistant
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Director, U.S. Department of Justice. Dennis C. Barghaan,
Jr. and Marleigh D. Dover, Attorneys, entered appearances.
Before: RANDOLPH and ROBERTS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
ROBERTS, Circuit Judge: Appellant Sonya Stewart, a De-
partment of Commerce employee, sued two Department of
Commerce attorneys in their personal capacities for money
damages under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). Stewart
asserts that the attorneys violated her Fourth Amendment
rights by reviewing certain documents she had compiled and
kept at work. Stewart had turned the documents over to
other agency officials who needed to determine their respon-
siveness to Freedom of Information Act and congressional
requests, but had done so subject to an agreement that the
documents not be provided to the attorneys. The district
court granted the attorneys’ motion for summary judgment,
dismissing the case. We affirm.
I. Background
A. Factual History
Appellant Sonya Stewart, at the pertinent time an employ-
ee at the Department of Commerce, alleges that then-
Inspector General Frank DeGeorge subjected her to a pro-
fanity-laced tirade of verbal abuse and threats during a
telephone conversation on May 3, 1996. After her reports to
high-level Department officials about DeGeorge’s abusive con-
duct failed to generate any response, Stewart filed a formal
complaint with the Department’s Office of Civil Rights (OCR),
alleging gender-based discrimination and retaliation. In that
complaint, she alleged that DeGeorge’s abusive conduct had
created a hostile work environment, and that employees in
the Department’s Office of General Counsel (OGC) had par-
ticipated in a scheme to stonewall her charges against De-
George and to retaliate against her.
The Department referred the complaint to the Equal Em-
ployment Opportunity Commission for investigation. The
3
EEOC completed its investigation and prepared a Report of
Investigation (ROI). An ROI contains the investigator’s sum-
mary of the evidence, as well as the complaint, testimony,
affidavits, and any pertinent correspondence and documents.
One copy of the ROI was given to Stewart, one to the
Department. Stewart kept her copy in a locked drawer in
her office, along with what she described as ‘‘voluminous
notes and other documents regarding the May 3, 1996 inci-
dent, the Commerce Department’s stonewalling and obstruc-
tion, and the subsequent acts of retaliation against her.’’
Compl. ¶ 26. The Department ultimately rejected Stewart’s
claims of gender-based discrimination and retaliation.
The documents compiled by Stewart first became an issue
in January 1998, when the Department received a Freedom of
Information Act request from the Washington Post. The
request sought any documents ‘‘involving or related to Frank
DeGeorge,’’ Letter from Stephen Barr, Washington Post
Staff Writer, to Brenda Dolan, Department of Commerce
FOIA Officer (Jan. 12, 1998), specifically naming documents
made or compiled by Stewart. Although believing her docu-
ments might be responsive, Stewart balked at allowing them
to be reviewed by the Department in response to the FOIA
request. She feared that during such a review OGC attor-
neys would gain access to her documents, which contained
accusations of wrongdoing by OGC staff, and to her work
product relating to her complaint against the Department.
Pursuant to an agreement with the Assistant Secretary for
Administration, Scott Gould, Stewart turned the documents
over to Brenda Dolan, the Department’s FOIA officer, for
review, on the condition that no personnel from OGC have
access to them. The documents were ultimately not provided
to the Washington Post.
The Department received another request for documents
pertaining to DeGeorge in February 1998, this time from
Senator Charles Grassley. Again, believing that her docu-
ments might be responsive, but concerned about possible
OGC access, Stewart brokered another agreement to permit
review of her documents. Pursuant to this agreement, Stew-
art transferred her documents to John Sopko — head of the
4
Special Matters Unit (SMU), a component of OGC that
handled requests for information from Congress — on the
conditions that no other personnel from OGC would have
access to them, and that they would be secured in a locked
safe within the SMU. But when both Sopko and Stewart
were on sick leave, appellee Kathleen Taylor, Chief of the
Employment Law Division (allegedly acting under the di-
rection of her supervisor, appellee Barbara Fredericks, Assis-
tant General Counsel for Administration) gained access to the
safe and reviewed the documents. After subsequent review
by SMU staff found the documents to be responsive to
Senator Grassley’s request, the Department provided all the
documents to Congress.
B. Procedural History
In February 2000, Stewart sued the Secretary of Com-
merce in his official capacity for sexual harassment and
retaliation in violation of Title VII of the Civil Rights Act of
1964, and sued Fredericks and Taylor in their personal
capacities for Fourth Amendment violations under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcot-
ics, 403 U.S. 388 (1971). The basis for the latter claim was
Taylor’s unauthorized review of Stewart’s documents in the
SMU. After transfer from the Eastern District of Virginia,
the district court dismissed the entire action under Federal
Rule of Civil Procedure 12(b)(6), concluding that the allega-
tions did not state a violation of Title VII, and that the
administrative remedies provided by the Civil Service Reform
Act (CSRA), 5 U.S.C. §§ 2301–2303, precluded Stewart’s
Fourth Amendment claims against Fredericks and Taylor.
Stewart appealed to this court. We affirmed the dismissal
of the Title VII claims but reversed the dismissal of the
Bivens action, holding that the CSRA did not bar Stewart’s
Fourth Amendment claims. Stewart v. Evans, 275 F.3d 1126
(D.C. Cir. 2002). This court declined to consider defendants’
arguments that ‘‘Stewart lacked a legitimate expectation of
privacy in the places they searched — or at least that such an
expectation was not clearly established — and that the defen-
dants are therefore shielded from liability by a qualified
5
immunity,’’ noting that the record was inadequate in the case,
‘‘which did not even get to the summary judgment stage.’’
Id. at 1130–31. As the court explained, ‘‘[w]ithout knowing
more about the circumstances surrounding the search, a court
simply cannot assess whether it was reasonable.’’ Id. at 1131.
On remand, Fredericks and Taylor moved for summary
judgment. Stewart opposed the motion on two grounds: (1)
the existence of genuine issues of material fact, and (2) the
need to conduct discovery under Rule 56(f) in order to oppose
the motion. The parties submitted affidavits, with exhibits, in
support of their respective positions concerning the motion.
After hearing oral argument, the district court granted sum-
mary judgment in favor of Fredericks and Taylor. The court
ruled that Stewart had no legitimate expectation of privacy in
the documents she had turned over to the other Department
officials, and therefore no protected Fourth Amendment in-
terest. The court went on to rule that Fredericks and Taylor
were in any event entitled to qualified immunity, because no
clearly established Fourth Amendment right had been violat-
ed. The court declined to permit discovery. Stewart again
appeals.
II. Analysis
A. Fourth Amendment Claim
Stewart asserts that she had a reasonable expectation of
privacy in her documents, and that Taylor’s examination of
those documents in contravention of the non-disclosure agree-
ment violated the Fourth Amendment. In addition, she
argues that her Fourth Amendment right was clearly estab-
lished — defeating any claim of qualified immunity — be-
cause O’Connor v. Ortega, 480 U.S. 709 (1987), had confirmed
that government employees enjoy a reasonable expectation of
privacy in personal documents kept at the workplace.
‘‘A court evaluating a claim of qualified immunity must first
determine whether the plaintiff has alleged the deprivation of
an actual constitutional right at all, and if so, proceed to
determine whether that right was clearly established at the
6
time of violation.’’ Wilson v. Layne, 526 U.S. 603, 609 (1999)
(internal quotation marks omitted). The constitutional ques-
tion generally should be decided first to ‘‘promote[ ] clarity in
the legal standards for official conduct, to the benefit of both
the officers and the general public.’’ Id. We accordingly
must first determine, applying the usual summary judgment
standards, whether Stewart has shown a violation of her
Fourth Amendment rights.
The Fourth Amendment provides that ‘‘[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures shall not
be violatedTTTT’’ The Supreme Court has explained that
‘‘[t]he touchstone of Fourth Amendment analysis is whether a
person has a ‘constitutionally protected reasonable expecta-
tion of privacy.’ ’’ California v. Ciraolo, 476 U.S. 207, 211
(1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967)
(Harlan, J., concurring)). Without a reasonable expectation
of privacy, ‘‘a Fourth Amendment search does not occur.’’
Kyllo v. United States, 533 U.S. 27, 33 (2001).
‘‘[T]he reasonableness of an expectation of privacy TTT is
understood to differ according to contextTTTT’’ O’Connor,
480 U.S. at 715 (plurality opinion). In this case, whether
Stewart had a protected Fourth Amendment interest depends
upon the reasonableness of her expectation of privacy with
respect to both the documents themselves, and the area
searched. See United States v. Salvucci, 448 U.S. 83, 93
(1980) (‘‘[W]e must TTT engage in a conscientious effort to
apply the Fourth Amendment by asking not merely whether
the defendant had a possessory interest in the items seized,
but whether he had an expectation of privacy in the area
searched.’’ (internal quotation marks omitted)).
Stewart claims that she had a reasonable expectation of
privacy in the SMU safe — the location of the documents at
the time of the search. But Stewart had no control whatever
over access to the office containing the safe or to the safe
itself. Stewart argues that because the documents were
secured under lock and key, she was entitled to the workplace
expectation of privacy established in O’Connor. In O’Connor,
7
however, the documents in question were kept under the
exclusive control of the claimant, who secured the documents
in his desk and file cabinets, within his office, which he did
not share with any other employees. 480 U.S. at 718.
O’Connor concerned ‘‘[p]ublic employees’ expectation of pri-
vacy in their offices, desks, and file cabinets,’’ id. at 717
(plurality opinion) (emphasis added), and offers little support
for the reasonableness of such expectations with respect to
the offices of other employees.
Here the documents were in the SMU, and not Stewart’s
office, because she had voluntarily relinquished control of
them. On two separate occasions — the Dolan review and
the SMU review — Stewart gave the documents to third
parties. See Smith v. Maryland, 442 U.S. 735, 743–44 (1979)
(‘‘This Court consistently has held that a person has no
legitimate expectation of privacy in information he voluntarily
turns over to third parties.’’); United States v. Scios, 590
F.2d 956, 991 (D.C. Cir. 1978) (‘‘Individuals TTT ordinarily
have no recognized privacy interest in information disclosed
by them to or otherwise possessed by third parties.’’); United
States v. Knoll, 16 F.3d 1313, 1321 (2d Cir. 1994).
The reason Stewart transferred the documents is highly
pertinent. In each instance her transfer was the first step in
a process that could — and, in the case of the SMU review,
did — result in broader disclosure of the documents, beyond
even the third parties to whom Stewart conveyed them.
When the threat of mandatory disclosure accompanies the
transfer of documents to a third party, little reasonable
expectation of privacy exists. See Couch v. United States,
409 U.S. 322, 335 (1973) (‘‘[T]here can be little expectation of
privacy where records are [transferred] TTT knowing that
mandatory disclosure of much of the information therein is
requiredTTTT’’).
Stewart argues, however, that the agreement she brokered
with Gould, restricting access to the documents, preserves
her expectation of privacy. But Stewart herself asserts that
‘‘the very purpose of the agreement was to prevent OGC, and
Fredericks and her staff in particular,’’ from reviewing the
8
documents, Stewart Decl. ¶ 14 — not to preserve their priva-
cy more generally. The documents could be and were ac-
cessed by other Department employees. Facilitating such
access was the whole point of turning them over. The Fourth
Amendment protects privacy; it does not constitutionalize
non-disclosure agreements. ‘‘This Court has held repeatedly
that the Fourth Amendment does not prohibit the obtaining
of information revealed to a third party TTT even if the
information is revealed on the assumption that it will be used
only for a limited purpose and the confidence placed in the
third party will not be betrayed.’’ United States v. Miller,
425 U.S. 435, 443 (1976).
Based on the circumstances surrounding the storage and
transfer of her documents within the Department, we find
that Stewart had no reasonable expectation of privacy in
either the documents or the SMU safe. We accordingly hold
that Stewart has not alleged a violation of the Fourth Amend-
ment. Having found no constitutional violation, ‘‘there is no
necessity for further inquiries concerning qualified immuni-
ty.’’ Saucier v. Katz, 533 U.S. 194, 201 (2001).
B. Discovery
Stewart also contends that the district court erred in
dismissing her Fourth Amendment claim without granting
discovery. She first asserts that the remand in Stewart v.
Evans, 275 F.3d 1126 (D.C. Cir. 2002), required the district
court to conduct discovery. When this case was first before
us, we declined to rule on appellees’ qualified immunity claim,
explaining that the case ‘‘did not even get to the summary
judgment stage’’ and that ‘‘[w]ithout knowing more about the
circumstances surrounding the search, a court simply cannot
assess whether it was reasonable.’’ Id. at 1131. We accord-
ingly remanded the case ‘‘for further proceedings,’’ but made
no reference to any need to conduct discovery, or specified
how the district court was to proceed. Id.
Contrary to Stewart’s contention that ‘‘there has been no
new factual development in this case,’’ Appellant’s Br. at 17,
the record before the district court on summary judgment
was significantly more developed than it had been at the
9
pleading stage, when we decided the first appeal. For exam-
ple, the record now contains affidavits from Stewart, Taylor,
Fredericks, Dolan, Sopko, and Gould, as well as other Depart-
ment employees, the parties’ respective statements of materi-
al facts not or in dispute, and numerous exhibits appended to
each of these items. These documents establish several
undisputed facts not evident from the complaint: (1) Stewart
gave the disputed documents to Dolan for review in response
to the Washington Post FOIA request; (2) Dolan reviewed
the documents for responsiveness; (3) Stewart gave the
documents to Sopko for review in response to Senator Grass-
ley’s request; and (4) SMU reviewed the documents and
eventually produced them to Congress.
In any event, our brief discussion of the record in the first
appeal simply noted that we lacked sufficient information
‘‘about the circumstances surrounding the search TTT [to]
assess whether it was reasonable.’’ 275 F.3d at 1131. A
warrantless search violates the Fourth Amendment if (1)
there is a reasonable expectation of privacy in the place or
object searched, creating a protected Fourth Amendment
interest, and (2) the search is unreasonable under Fourth
Amendment standards. See, e.g., O’Connor, 480 U.S. at 715–
24; United States v. Chadwick, 433 U.S. 1, 11–12 (1977);
Terry v. Ohio, 392 U.S. 1, 8–9 (1968). On remand, the district
court found that Stewart had no reasonable expectation of
privacy in the documents, see Motion Hearing Tr. at 45 (‘‘[T]o
say that TTT society is prepared to accept [Stewart’s] expecta-
tion as a legitimate Fourth Amendment right is way beyond
the jurisprudence that I can locate.’’), thereby concluding that
she had no protectable Fourth Amendment interest. Conse-
quently, the district court had no need to reach the question
of whether the search was reasonable — the only point on
which we had expressed concern about the adequacy of the
record on the first appeal. The district court did not contra-
vene our prior opinion in deciding the case on the basis it did
without conducting discovery.1
1Our prior opinion had noted that ‘‘[j]ust as the Court in O’Con-
nor remanded the matter for further proceedings because ‘the
10
Stewart finally argues that the district court erred by not
granting discovery under Rule 56(f).2 This court reviews a
district court’s refusal to allow discovery under an abuse of
discretion standard. Information Handling Servs., Inc. v.
Defense Automated Printing Servs., 338 F.3d 1024, 1032
(D.C. Cir. 2003). Like the district court, we fail to discern
how discovery would shed any different light on the undisput-
ed facts central to this case: (1) Stewart had no control over
the area searched — it was not her desk or even her office;
(2) Stewart on two occasions turned the documents over to
third parties, and they were removed from her office; (3) she
did so for the very purpose of potential production under
FOIA and potential production in response to a congressional
request; and (4) the Department produced the documents to
Congress. No amount of discovery could alter the undisput-
ed facts that demonstrate Stewart had no reasonable expecta-
tion of privacy, and consequently no Fourth Amendment
claim. The district court was well within the bounds of its
discretion to deny discovery.
III. Conclusion
We affirm the district court’s grant of summary judgment.
record was inadequate for a determination on motion for summary
judgment of the reasonableness of the search and seizure,’ so must
we remand this caseTTTT’’ 275 F.3d at 1131 (quoting 480 U.S. at
727) (citation omitted). The Supreme Court in O’Connor, however,
considered whether the search was reasonable only after having
found that there was a reasonable expectation of privacy. See 480
U.S. at 719.
2 Rule 56(f) provides that a court ‘‘may refuse the application
for judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had’’ if it
‘‘appear[s] from the affidavits of a party opposing the motion that
the party cannot for reasons stated present by affidavit facts
essential to justify the party’s opposition.’’ Fed. R. Civ. P. 56(f).