Church of Scientology of California v. United States Postal Service

POOLE, Circuit Judge,

concurring in part.

I concur generally in the result reached in Judge Alarcon’s painstaking exposition. I have some reservations whether the issue— that is, did the Church substantially prevail — is so arcane as to require response to all the litany suggested by the majority opinion. In any event, given the record as we have it, we are now in as good a position to decide that issue as was the district court, or as we will be after remand, and we should do so. Much of this might have been avoided altogether if the district judge had ruled whether the 615 pages of new material, previously withheld under exemption (b)(7)(A), but subsequently released, were substantially exempt. If so the Church did not prevail. That to me seems the heart of this matter.

*496Finally I do not concur in what I believe to be inappropriate directions to the district court that it make findings of fact and conclusions of law in a summary judgment case. It helps appellate review when the district court articulates its basis for summary judgment; it is inappropriate to require findings be made, as under Rule 52(a) of the Federal Rules of Civil Procedure, since making such findings is the antithesis of summary judgment. We should not so direct.