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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2006 Decided February 6, 2007
No. 05-5142
WILLIE E. BOYD,
APPELLANT
v.
CRIMINAL DIVISION OF THE UNITED STATES DEPARTMENT OF
JUSTICE, ET AL.,
APPELLEES
No. 04-5369
WILLIE E. BOYD,
APPELLANT
v.
UNITED STATES MARSHALS SERVICE, ET AL.,
APPELLEES
2
Appeals from the United States District Court
for the District of Columbia
(No. 04cv01100)
(No. 99cv02712)
Steven H. Goldblatt, appointed by the court, argued the
cause and filed the briefs as amicus curiae for appellant Willie
E. Boyd.
Willie E. Boyd, pro se, filed briefs.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellees Criminal Division of the United States Department
of Justice, et al. and United States Marshals Service, et al. With
her on the brief were Kenneth L. Wainstein, U.S. Atttorney at
the time the brief was filed, and R. Craig Lawrence, Assistant
U.S. Attorney. Julia K. Douds and Michael J. Ryan, Assistant
U.S. Attorneys, entered appearances.
Before: GINSBURG, Chief Judge, and RANDOLPH and
ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Following his conviction of drugs
and weapons charges, Willie Boyd filed a series of requests for
information under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, in an attempt to uncover alleged violations of
Brady v. Maryland, 373 U.S. 83, 86 (1963), during his trial.
Although various documents were disclosed, the government
agencies withheld others pursuant to FOIA exemptions. On
appeal, Boyd challenges the grants of summary judgment to the
agencies, contending through court-appointed amicus curiae that
the district court erred in ruling that the FOIA exemptions were
3
properly invoked, in failing to grant other remedies and to award
costs. We affirm.
I.
Boyd was arrested on a parole violation warrant at his
girlfriend’s house on February 1, 1997. Based on a gun and a
black bag containing cocaine that were found in the master
bedroom closet, Boyd was indicted and convicted of drugs and
weapons charges, including being a felon in possession of a
firearm and of possession with intent to distribute cocaine. His
conviction was affirmed on appeal. United States v. Boyd, 180
F.3d 967 (8th Cir. 1999). Following his trial, Boyd learned that
his girlfriend’s brother, Bryant Troupe, had been a government
informant for several years and had sold drugs in the past. This
information was contained in the prosecutor’s Brady disclosure
letter in a case in which Troupe had testified at trial as a
government informant. See Miller v. United States, 135 F.3d
1254, 1255-56 (8th Cir. 1998). Amicus contends that this
information, which he believes could have been used to support
Boyd’s defense that the gun and drugs found in the closet
belonged to Troupe and to suggest that the government may
have failed to investigate that possibility because it had an
interest in not jeopardizing convictions that Troupe, acting as an
informant, had helped to obtain, was withheld from Boyd during
his criminal trial in violation of Brady, 373 U.S. at 87.
In 1998 Boyd filed the first of several FOIA requests
seeking information about himself and Troupe from several
federal agencies involved in Boyd’s prosecution, including the
Executive Office for United States Attorneys (“Attorneys’
Office”), the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (“BATF”), and the Bureau of Prisons (“BOP”). The
agencies released some documents and withheld others pursuant
4
to FOIA Exemptions 7(A), 7(C), and 7(D).1 In 1999, Boyd filed
a complaint, and later an amended complaint, challenging the
agencies’ invocations of FOIA exemptions and the adequacy of
their searches. The district court granted summary judgment to
the Attorneys’ Office and BOP, but denied judgment to BATF
based, in part, on its failure to demonstrate the adequacy of its
search.
Upon a further search, BATF located a work file that had
been kept by the BATF agent in charge of the investigation in
Boyd’s criminal case. Because the work file contained
documents that were not part of the official case file, BATF
processed it for release in accordance with Boyd’s FOIA
request. The district court, after appointing counsel for Boyd
and ordering discovery, granted summary judgment to BATF.
The district court denied Boyd’s request for costs on the ground
that he had not substantially prevailed.
Following new FOIA requests in 2003 and 2004 to the
Criminal Division of the Justice Department (“Criminal
Division”) and the United States Marshals Service (“Marshals
Service”) for information about himself and Troupe, Boyd filed
another complaint. The district court granted summary
judgment to the agencies, finding that they had demonstrated the
adequacy of their searches and ruling that they had properly
invoked exemptions to withhold information. By order of
December 27, 2005, this court consolidated Boyd’s appeals.
1
The government also withheld documents pursuant to
Exemption 3, which covers “matters that are . . . specifically exempted
from disclosure by statute.” 5 U.S.C. § 552(b)(3). Because the
government advised during oral argument that these documents have
been released to Boyd, Amicus’s challenge to the invocation of
Exemption 3 is moot. See Perry v. Block, 684 F.2d 121, 125 (D.C.
Cir. 1982).
5
II.
Congress established FOIA to allow private persons to
access government records and thereby be informed about “what
their government is up to.” U.S. Dep’t of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)
(internal quotation marks omitted). Congress also recognized,
however, that the disclosure of certain information “may harm
legitimate governmental or private interests” and accordingly
enacted several exemptions to FOIA disclosure requirements.
Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir.
1998); see also Stern v. Fed. Bureau of Investigation, 737 F.2d
84, 88 (D.C. Cir. 1984). Upon de novo review of the grants of
summary judgment, see Iturralde v. Comptroller of the
Currency, 315 F.3d 311, 313 (D.C. Cir. 2003), this court must
determine whether the agencies sustained their burden of
demonstrating that the withheld documents are exempt from
disclosure under FOIA, see Johnson v. Executive Office for U.S.
Attorneys, 310 F.3d 771, 774 (D.C. Cir. 2002); Summers, 140
F.3d at 1080.
A.
Exemption 7(A) authorizes the withholding of “records or
information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records
or information . . . could reasonably be expected to interfere
with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The
government meets its burden by demonstrating that release of
the requested information would reveal “the size, scope and
direction of [the] investigation” and thereby “allow for the
destruction or alteration of relevant evidence, and the fabrication
of fraudulent alibis.” Alyeska Pipeline Serv. Co. v. U.S. Envtl.
Prot. Agency, 856 F.2d 309, 312 (D.C. Cir. 1988) (internal
quotation marks omitted).
6
In Boyd’s case, the government explained that disclosure
would “promote the criminal activity of” the targets of the
investigation, “allow [the targets] to avoid arrest and
prosecution,” and “provide them information that would allow
them to change their operations to avoid detection.” Because
the individuals under investigation are all “related [to],
controlled [by], or influenced by” Boyd, disclosure of the
information could reasonably be expected to reveal to the targets
“the size, scope, and direction of [the] investigation,” Alyeska,
856 F.2d at 312, and allow them to destroy or alter evidence,
fabricate fraudulent alibis, and take other actions to frustrate the
government’s case.
The government’s explanation also adequately meets
Amicus’s contentions that the government has not identified “a
concrete prospective law enforcement proceeding,” see Bevis v.
Dep’t of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986) (quoting
Carson v. U.S. Dep’t of Justice, 631 F.2d 1008, 1018 (D.C. Cir.
1980)) (internal quotation marks omitted), or specified that the
enforcement proceeding is pending or reasonably anticipated,
see Mapother v. Dep’t of Justice, 3 F.3d 1533, 1540 (D.C. Cir.
1993). In Bevis, this court held that investigations related to
potential prosecutions for the murders of several Americans in
El Salvador constituted concrete law enforcement proceedings.
Bevis, 801 F.2d at 1387-89. Amicus maintains that here the
government has asserted only that its investigation concerned
“illegal activities” and “criminal activities” without specifying
the type of criminal activity under investigation. Unlike in
Bevis, however, sufficient specificity regarding the
government’s investigation is provided by its identification of
the targets of the investigation: “individuals . . . to some degree,
related [to], controlled [by], or influenced by” Boyd.
Although Amicus implied during oral argument that no
investigations involving Boyd were still active, the
7
government’s affidavit states that the investigation at issue
involves the “ongoing collection of data” and that the withheld
records relate to “potential criminal proceedings against
individuals.” See Mapother, 3 F.3d at 1540; Coastal States Gas
Corp. v. Dep’t of Energy, 617 F.2d 854, 870 (D.C. Cir. 1980).
The duration of the investigation was brief; the documents at
issue are dated 1997, Boyd was convicted in April 1998, and the
government invoked Exemption 7(A) in early 1999. Therefore,
Amicus fails to show that Exemption 7(A) was improperly
invoked.
B.
Exemption 7(C) authorizes the government to withhold
“records or information compiled for law enforcement purposes,
but only to the extent that the production of such law
enforcement records or information . . . could reasonably be
expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). The government may
nonetheless be required to disclose the documents if the
individual seeking the information demonstrates a public interest
in the information that is sufficient to overcome the privacy
interest at issue. See Reporters Comm., 489 U.S. at 762, 776.
In order to trigger the balancing of public interests against
private interests, a FOIA requester must (1) “show that the
public interest sought to be advanced is a significant one, an
interest more specific than having the information for its own
sake,” and (2) “show the information is likely to advance that
interest.” Nat’l Archives & Records Admin. v. Favish, 541 U.S.
157, 172 (2004). If the public interest is government
wrongdoing, then the requester must “produce evidence that
would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.” Id. at 174.
Amicus posits district court error on the government’s
obligation under Brady to disclose exculpatory evidence in
8
Boyd’s criminal trial. In Brady, the Supreme Court held that
“suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence
is material either to guilt or to punishment.” Brady, 373 U.S. at
87. The Court later explained that “evidence is material only if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.” United States v. Bagley, 473 U.S. 667, 682
(1985). Because the duty to disclose under Brady “encompasses
evidence ‘known only to police investigators,’” Strickler v.
Greene, 527 U.S. 263, 280-81 (1999) (quoting Kyles v. Whitley,
514 U.S. 419, 438 (1995)), “[i]n order to comply with Brady
. . . ‘the individual prosecutor has a duty to learn of any
favorable evidence known to [those] acting on the government’s
behalf,’” id. at 281 (quoting Kyles, 514 U.S. at 437).
Consequently, Amicus contends, the public has an interest in
knowing both whether Brady-related misconduct occurred
during Boyd’s criminal trial and whether the government
generally complies with its Brady obligations, including whether
the Justice Department has adequate procedures to ensure that
trial prosecutors are made aware of all Brady information in the
government’s possession.
Even assuming Amicus has identified a sufficient public
interest, we conclude that Exemption 7(C) was properly invoked
because Amicus has failed to “produce evidence that would
warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.” Favish, 541
U.S. at 174. Of the two evidentiary showings that Amicus
contends would warrant a belief of government misconduct,
neither suffices. First, Amicus suggests that Boyd’s discovery
of the disclosure letter in the Miller case containing potentially
exculpatory information about Troupe suggests the government
failed to comply with its Brady obligations. Even after
discovery, however, Amicus makes no showing that Boyd has
9
identified anything withheld at his criminal trial but produced
under FOIA that would suggest an actual Brady or Jencks
violation, see 18 U.S.C. § 3500. Amicus also points to letters
from Boyd’s defense counsel indicating that he never received
certain allegedly exculpatory documents and to the prosecutor’s
answer, when asked by defense counsel about his disclosures
several years after the case, that no such documents had been
disclosed because they did not constitute Brady material.
However, letters the prosecutor wrote in 1998 suggest that the
documents at issue were turned over and it is doubtful that a
reasonable person would infer government misconduct from
unsworn letters from defense counsel years after Boyd’s 1998
conviction. The record shows that the prosecutor in Boyd’s
criminal case turned over materials to Boyd’s defense counsel
pursuant to Federal Rule of Criminal Procedure 16, such as any
statements made by Boyd and written summaries of expert
testimony that the government intended to use at trial. Boyd
acknowledges that the prosecutor also turned over exculpatory
grand jury testimony that implicated Troupe. He offers no
reason for the government to have been selective in its
production.
Second, Amicus points to the discovery of the BATF
agent’s work file during Boyd’s FOIA litigation as indicating
that the government may not have complied with its Brady
obligations. Amicus suggests that the prosecutor in Boyd’s
criminal case may have been unaware of the documents in that
file and therefore may have mistakenly thought he had disclosed
all material exculpatory evidence. Neither Amicus nor Boyd,
however, produces any evidence that the work file actually
contained Brady or Jencks material that had not been disclosed.
Although Boyd had sought a report of an interview of a man
named Albert Greer, because the report was located in the work
file and subsequently disclosed, the issue is moot for purposes
of this FOIA action. See Perry v. Block, 684 F.2d 121, 125
10
(D.C. Cir. 1982). Boyd also suggests that the BATF agent
deliberately concealed records based on an email revealing the
BATF agent’s personal views about releasing documents. These
documents, however, were released, and the agent’s opinion is
immaterial.
Thus both Amicus and Boyd fail to produce evidence
sufficient to meet the Favish standard. Unsubstantiated
assertions of government wrongdoing—e.g., regarding the
seizure of Boyd’s jailhouse phone conversations, lies by the
prosecutor, and alleged perjury by a U.S. Marshal—do not
establish “a meaningful evidentiary showing.” See Favish, 541
U.S. at 175. Absent evidence to support most of the alleged
improprieties, and clearly not enough for a reasonable person to
conclude that the remaining allegations of government
malfeasance might be true, see id. at 174, there is no
“counterweight on the FOIA scale for the court to balance
against the cognizable privacy interests in the requested
records,” id. at 174-75, and thus the challenge to the
government’s invocation of Exemption 7(C) fails, see id. In any
event, although Amicus stated during oral argument that the
BATF agent’s creation of a separate work file in Boyd’s case
suggests that the agent might be engaging in similar behavior in
other cases, and more generally suggests a vulnerability in
Justice Department procedures for ensuring that prosecutors are
informed of all exculpatory evidence in the government’s
possession, a single instance of a Brady violation in Boyd’s case
would not suffice to show a pattern of government wrongdoing
as could overcome the significant privacy interest at stake. See
Reporters Comm., 489 U.S. at 780; Beck v. Dep’t of Justice, 997
F.2d 1489, 1493 (D.C. Cir. 1993).
In addition to withholding and redacting information under
Exemption 7(C), in response to Boyd’s requests for information
concerning Troupe, the Attorneys’ Office and the Marshals
11
Service also issued Glomar responses, refusing either to confirm
or to deny the existence of responsive information, see Phillippi
v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976); 5 U.S.C. §
552(c)(2),2 but claiming that, if such information existed, it
would be protected under Exemption 7(C). Where an
informant’s status has been officially confirmed, a Glomar
response is unavailable, and the agency must acknowledge the
existence of any responsive records it holds. See Benavides v.
Drug Enforcement Admin., 968 F.2d 1243, 1246 (D.C. Cir.
1992). Boyd’s request for information concerning Troupe was
not limited to his own criminal prosecution, but sought from the
agencies “any and all information in your files on Bryant
Troupe, as a confidential informant.” His request thus
encompasses information about Troupe’s involvement in the
Miller case, in which the government admits Troupe’s status as
an informant was officially confirmed.
Although in other circumstances a remand might be
required for the district court to determine whether the
government possesses the requested information and, if so,
whether its withholding of the information is justified, as was
true in Benavides, id., none is required here. The government
2
Section 552(c)(2) provides:
Whenever informant records maintained by a
criminal law enforcement agency under an
informant’s name or personal identifier are requested
by a third party according to the informant’s name or
personal identifier, the agency may treat the records
as not subject to the requirements of this section
unless the informant’s status as an informant has been
officially confirmed.
5 U.S.C. § 552(c)(2).
12
properly invoked Exemption 7(C) to protect information
concerning Troupe. Because Boyd was not entitled to this
information, he was not harmed by the government’s refusal to
confirm or deny whether it possessed responsive information.
Any error, then, in invoking Glomar would not entitle Boyd to
anything more under FOIA. See also Oguaju v. United States,
288 F.3d 448, 451 (D.C. Cir. 2002), vacated on other grounds
sub nom. Oguaju v. Marshals Serv., 541 U.S. 970, judgment
reinstated, 378 F.3d 1115, amended, reh’g denied, 386 F.3d 273
(D.C. Cir. 2004).
C.
Exemption 7(D) authorizes the withholding of “records or
information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records
or information . . . could reasonably be expected to disclose the
identity of a confidential source . . . and, in the case of a record
or information compiled by criminal law enforcement authority
in the course of a criminal investigation . . . information
furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D).
“[A] source is confidential within the meaning of Exemption
7(D) if the source provided information under an express
assurance of confidentiality or in circumstances from which
such an assurance could be reasonably inferred.” U.S. Dep’t of
Justice v. Landano, 508 U.S. 165, 172 (1993) (internal quotation
marks omitted).
Amicus does not claim that the informant in Boyd’s case
did not receive an assurance of confidentiality. Boyd’s assertion
that the government’s declarations are inconsistent, because one
refers to an express assurance while another refers to an implied
assurance, ignores the possibility that more than one informant
may have been involved in his case or that the informant may
have received both assurances, albeit at different times; in any
event, Boyd offers nothing that would call into question the
13
evidence cited in the BATF affidavit to demonstrate the
informant received an express grant of confidentiality. Hence,
the government may properly invoke Exemption 7(D) to
withhold the identity of the confidential informant in Boyd’s
case and the information furnished by the informant. Although
Amicus makes much of the fact that Troupe’s status as an
informant was confirmed in Miller, that confirmation does not
amount to an admission that he was an informant in Boyd’s case
as well. We need not address Amicus’s contention that the
government is nonetheless required to disclose the same
information that was officially disclosed in the Miller case, see
Wolf v. CIA, Nos. 05-5394 & 06-5072, slip op. at 13-14 (D.C.
Cir. Jan. 16, 2007), because the Attorneys’ Office advised Boyd
that, upon request, it would provide him with all public
information concerning Troupe in its possession.
Amicus also contends that the government is precluded
from invoking Glomar in conjunction with Exemption 7(D) in
response to Boyd’s requests for information concerning Troupe
because his status as an informant was officially confirmed in
Miller. Because we concluded that the government’s invocation
of Glomar in conjunction with Exemption 7(C) deprived Boyd
of no information to which he was entitled, there is no need to
revisit the issue with regard to Exemption 7(D). Any
information that may have been the subject of an erroneous
invocation of Glomar was nonetheless properly withheld under
Exemption 7(C).
To the extent Amicus also contends that the government
should not be able to withhold under Exemption 7(D) material
exculpatory evidence that was wrongfully withheld at Boyd’s
trial, Amicus presents a policy argument for Congress’s
consideration. The disclosure obligation that Brady imposes at
a defendant’s criminal trial based on constitutional
considerations is not the same disclosure obligation imposed
14
under FOIA by Congress. To vindicate the former, a defendant
may collaterally attack his conviction pursuant to 28 U.S.C. §
2255. See Kyles, 514 U.S. at 421-22. To vindicate the latter, a
defendant may appeal the agency’s withholding of requested
information for failure properly to invoke a FOIA exemption or
otherwise to comply with FOIA search obligations. In other
words, the disclosure requirements are not coextensive.
Amicus’s suggestion that an agency’s compliance with FOIA is
nonetheless deficient where the agency may allegedly have
failed to make the trial prosecutor aware of Brady material
conflates two separate procedures by which a defendant may
obtain information from the government. It ignores that “a
disclosure made to any FOIA requester is effectively a
disclosure to the world at large.” Students Against Genocide v.
Dep’t of State, 257 F.3d 828, 836 (D.C. Cir. 2001); see also
Favish, 541 U.S. at 174. Congress, however, not only enacted
section 2255 to allow correction of convictions imposed in
violation of the law, it also enacted exemptions to FOIA
disclosure obligations under specified circumstances. Amicus’s
contention that wrongfully withheld Brady material may never
be protected under Exemption 7(D) would rewrite Congress’s
statutory scheme. In any event, this court has rejected a
balancing of interests under Exemption 7(D). See Parker v.
Dep’t of Justice, 934 F.2d 375, 380 (D.C. Cir. 1991).
D.
Amicus’s other challenges to the grants of summary
judgment fail. Boyd’s pro se briefs also provide no basis for
finding district court error.
The affidavits filed by the agencies in response to Boyd’s
FOIA requests make clear that their “search[es] [were]
reasonably calculated to uncover all relevant documents.”
Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.
Cir. 1984) (internal quotation marks omitted); see Perry, 684
15
F.2d at 126-27. Although Amicus makes much of the failure to
uncover or account for particular audio tapes, the fact that a
particular document was not found does not demonstrate the
inadequacy of a search. See Iturralde, 315 F.3d at 315;
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.
Cir. 1999).
The district court did not abuse its broad discretion in
declining to conduct an in camera inspection of the BATF
agent’s work file and of the documents withheld under
Exemption 7(D). See Carter v. U.S. Dep’t of Commerce, 830
F.2d 388, 392 (D.C. Cir. 1987); Ctr. for Auto Safety v. Envtl.
Prot. Agency, 731 F.2d 16, 20 (D.C. Cir. 1984). Although in
camera review may be particularly appropriate if the agency
affidavits do not describe the documents and justifications for
withholding in sufficient detail to demonstrate that the claimed
exemption applies, Carter, 830 F.2d at 392-93, Amicus has not
demonstrated that the agencies failed to provide sufficiently
detailed affidavits, nor offered evidence of bad faith. Upon
discovering the work file, BATF released responsive non-
exempt documents. Under the circumstances, Amicus fails to
show the district court abused its discretion by failing to conduct
in camera review of the withheld documents.
Neither did the district court abuse its discretion by
declining to order the government to disclose all segregable
information in records withheld under Exemption 7(D).
Observing that grand jury testimony associated Troupe with the
gun and drugs found in his sister’s home where Boyd was
arrested, Amicus speculates that the government may have
questioned Troupe about the items without giving him
assurances of confidentiality, and thus segregable non-exempt
documents may exist. The agencies are entitled to a
presumption that they complied with their obligation to disclose
“any reasonably segregable portion of a record,” 5 U.S.C. §
16
552(b); cf. U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001)
(citing United States v. Chem. Found. Inc., 272 U.S. 1, 14-15
(1926)); Fed. Trade Comm’n v. Invention Submission Corp., 965
F.2d 1086, 1091 (D.C. Cir. 1992), and the record indicates that
they did segregate non-exempt information in documents
withheld under other FOIA exemptions.
Nor did the district court abuse its discretion by not
requiring the government to specify the date on which the
Criminal Division destroyed responsive documents. Amicus,
noting the several month delay between Boyd’s request for
documents and the Criminal Division’s response, suggests that
the Criminal Division may have acted in bad faith in destroying
the documents and seeks the date of destruction to support its
claims. This court has rejected the notion that an initial agency
delay in responding to a FOIA request constitutes bad faith. See
Iturralde, 315 F.3d at 314-15. But even if the documents were
destroyed during the relevant time frame, their destruction, if
performed in accordance with specified guidelines, would not
imply bad faith. Amicus has made no proffer of a contrary
records destruction schedule.
Finally, the district court did not err in denying Boyd’s
request for costs because he did not “substantially prevail[].” 5
U.S.C. § 552(a)(4)(E). In neither of the March 15, 2002 orders
on which Amicus relies did the district court order the
government to turn over documents to Boyd. See Edmonds v.
Fed. Bureau of Investigation, 417 F.3d 1319, 1321-23 (D.C. Cir.
2005) (citing Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 601, 604-05
(2001)); Oil, Chem. & Atomic Workers Int’l Union, AFL-CIO v.
Dep’t of Energy, 288 F.3d 452, 456-57 (D.C. Cir. 2002).
Accordingly, we affirm the grants of summary judgment.