Johnson, Neil v. Exec Off US Atty

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2002 Decided November 22, 2002

No. 01-5206

Neil Johnson,
Appellant

v.

Executive Office for United States Attorneys and
Bonnie L. Gay, Acting Assistant Director, Executive Office
for United States Attorneys,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 98cv00729)

Kristen Flynn, appointed by the court, argued the cause as
amicus curiae on behalf of the appellant. With her on the
briefs was William B. Schultz.

Neil Johnson filed briefs pro se.

 Michael J. Ryan, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney.

Before: Ginsburg, Chief Judge, and Sentelle and
Randolph, Circuit Judges.

Sentelle, Circuit Judge: Pursuant to the Freedom of
Information Act (FOIA), 5 U.S.C. s 552 (2000), Neil Johnson
seeks to compel the release of documents pertaining to his
criminal conviction withheld by the Executive Office for Unit-
ed States Attorneys (EOUSA). EOUSA withheld, in whole
or in part, a number of records under exemption 7(C), which
permits the agency to do so to protect the privacy interests of
other parties named in the record. s 552 (b)(7)(C). Johnson
argues that EOUSA is required to take steps to determine
whether these parties are alive or dead in order to claim this
exemption properly, and to provide a more complete explana-
tion for the non-segregability of documents withheld in full.
The district court granted the government's motion for sum-
mary judgment on the merits, upholding the agency's invoca-
tion of the FOIA exemptions. Because we find that the
agency took sufficient steps to investigate information affect-
ing the privacy interests of the individuals, and because the
agency's affidavits and the district court's finding on the issue
of segregability satisfy the requirements of 552(b), we affirm
the district court's grant of summary judgment. Johnson
also seeks reinstatement of his claim for constitutional dam-
ages against EOUSA attorney Bonnie Gay, which the district
court dismissed for failure to state a claim. Because the
district court properly concluded that FOIA precludes courts
from fashioning a damage remedy under Bivens, we affirm.

I. Background

In July of 1996, Appellant, Neil Johnson, then incarcerated,
submitted a request under FOIA, s 552, to EOUSA, for all
records pertaining to himself. EOUSA received this request
on July 30, 1996. In response to a request from EOUSA,
Johnson stated that his records were located in the United

States Attorney's Office (USAO) for the District of Connecti-
cut. On September 13, EOUSA informed him that his re-
quest was complete and contacted the United States Attor-
ney's Office in Connecticut. On April 24, 1997, EOUSA
informed Johnson through a letter from Bonnie Gay, an
EOUSA attorney with responsibilities for FOIA, that the
records he requested totaled over 6,000 pages of material and
that a $250.00 deposit would be needed before duplication
could begin. In response, Johnson sent a request for a
verification of the volume of his records and indicated that he
did not wish to receive any trial transcripts. Before EOUSA
responded to this request, Johnson sent a money order for
$250.00. On August 26, EOUSA informed him that his
money order had been received, that it had received two
boxes of responsive documents from the Connecticut USAO,
and that he would be refunded any difference between actual
costs and the advance fee.

Johnson heard nothing further from EOUSA, even after
sending a letter in late November 1997, informing EOUSA of
his plan to seek legal redress if he did not receive at least
some of the requested documents within fourteen days. True
to his word, Johnson filed a complaint on March 23, 1998, in
the United States District Court for the District of Columbia
against EOUSA and Bonnie Gay, in her individual and official
capacities, seeking release of the requested documents, a
declaration that the defendants' actions violated his constitu-
tional rights, compensatory and punitive damages, and costs.
During May 1998, EOUSA consulted with the FBI on the
release of twenty-five pages of documents. The FBI withheld
seven of those pages in full. On July 9, 1998, EOUSA made a
partial release of the documents. At the same time, it
informed Johnson that he would be reimbursed the $250.00
and that some of the records he requested were being
withheld pursuant to FOIA exemptions 3, 5, 7(C), and 7(D), 5
U.S.C. s 552(b)(3), (b)(5), (b)(7)(C), and (b)(7)(D), and provid-
ed him with a Vaughn index. See Vaughn v. Rosen, 484 F.2d
820, 826-28 (D.C. Cir. 1973). On the same day, EOUSA
referred 338 pages to the United States Customs Service, the
Drug Enforcement Agency, and the Criminal Division of the

Department of Justice for review and direct response.
EOUSA mailed Johnson a refund of $250.00 on January 4,
2000.

Johnson first informed EOUSA of the possible deaths of
two persons identified in some of the withheld documents,
Carlos Jacaman and Raul Rivera, in his July 10, 2000 opposi-
tion to EOUSA's motion for summary judgment. At that
point Teresa Davis, another EOUSA attorney, attempted to
confirm the status of Jacaman and Rivera by contacting state
and federal probation offices in Connecticut, at Johnson's
suggestion, as well as the United States Customs Service and
the Social Security Administration. These attempts were not
ultimately successful, and to date, neither EOUSA nor John-
son has been able to locate the social security numbers of
either Jacaman or Rivera or to confirm if either is still alive.

On May 4, 2000, the district court granted the govern-
ment's motion to dismiss the complaint against Bonnie Gay
for lack of proper service and failure to state a claim. John-
son v. EOUSA, No. 98-729, slip op. (D.D.C.). Johnson filed a
notice of appeal from that ruling, but decided it was prema-
ture, and this Court dismissed that appeal for lack of prosecu-
tion on October 25, 2000. Johnson v. EOUSA, No. 00-5229
(D.C. Cir. 2000). On April 2, 2001, the district court granted
the government's motion for summary judgment on the mer-
its, Johnson v. EOUSA, No. 98-729, slip op. (D.D.C.), first
noting that several of Johnson's arguments were mooted by
the return of his $250.00, the release of his pre-sentence
report and the response of both sides to summary judgment
motions not correctly received by the parties. After noting
that Johnson had not challenged the withholding of docu-
ments under exemption 7(D), the district court held that
EOUSA's withholding of documents both as non-responsive to
appellant's request and under FOIA exemptions 3, 5 and 7(C)
was proper. Finally, the district court ruled that EOUSA
had performed an adequate segregability analysis to satisfy
the requirements of s 552(b). The appellant appealed from
the district court's grant of summary judgment in favor of
EOUSA, and from the district court's dismissal of the com-
plaint against Bonnie Gay.

 II. Analysis

Grant of Summary Judgment for EOUSA

This Court reviews the district court's grant of summary
judgment de novo. Nation Magazine v. United States Cus-
toms Serv., 71 F.3d 885, 889 (D.C. Cir. 1995). De novo review
of an agency's compliance with FOIA requires this Court to
"ascertain whether the agency has sustained its burden of
demonstrating that the documents requested ... are exempt
from disclosure under the FOIA." Summers v. DOJ, 140
F.3d 1077, 1080 (D.C. Cir. 1998). An agency may meet this
burden by providing the requester with a Vaughn index,
which must adequately describe each withheld document,
state which exemption the agency claims for each withheld
document, and explain the exemption's relevance. See id. In
this case, EOUSA provided a Vaughn index which stated in
some detail the documents withheld, and the various exemp-
tions on which it relied. Johnson's complaint is primarily
focused on the adequacy of EOUSA's reliance on FOIA
exemption 7(C), which permits the agency to withhold infor-
mation contained in a law enforcement record that "could
reasonably be expected to constitute an unwarranted invasion
of personal privacy." s 552(b)(7)(C).

Johnson challenges the agency's contention that the privacy
interests of other persons named in the records he requested
compel the withholding of those records. He argues that
because the agency must balance the privacy interests of
individuals named in the records with the public interest in
their release when deciding whether exemption 7(C) is appli-
cable, the agency was required to take steps to determine
whether the privacy interests of those individuals had been
diminished by their deaths. In his opposition to EOUSA's
motion for summary judgment, Johnson stated that he had
personal knowledge that at least two persons named in his
records, Carlos Jacaman and Raul Rivera, had been suffering
from the AIDS virus prior to his 1994 trial, and therefore
might have been dead when EOUSA claimed the 7(C) exemp-
tion based at least in part on their privacy interests.

 In response to this information, EOUSA attorney Teresa
Davis took actions to verify the status of Jacaman and Rivera.
In her search concerning Jacaman, she contacted the U.S.
Customs Office in Connecticut, where a customs investigator
directed her to the Customs Headquarters in Washington,
D.C., which maintains informant files. In turn, she contacted
the D.C. office, which informed her that the Social Security
Administration (SSA) could provide her with the information
she sought. She called the SSA, identified herself as an
attorney with the Department of Justice and was told that the
SSA could not retrieve information regarding a person's
status unless she provided a social security number, and that
even if she had the number, and regardless of the official
nature of her inquiry, she would probably not be provided
with that information. She also searched for Jacaman's social
security number and could not locate it. At Johnson's sug-
gestion, Davis contacted the District of Connecticut United
States Probation Office, in order to try and locate Rivera.
She was informed that he was no longer under their supervi-
sion, and they had no record of his whereabouts. She also
contacted the State of Connecticut Probation Office, and was
met with the same response. Despite the efforts of Davis,
EOUSA was unable to verify the status of either Jacaman or
Rivera.

Johnson claims that the actions Davis took do not meet the
"basic steps" required of an agency withholding information
based on an exemption 7(C) privacy interest, under the rule
of Schrecker v. DOJ, 254 F.3d 162, 167 (D.C. Cir. 2001). In
Schrecker, this Court recognized that the death of an individ-
ual whose privacy interest provides the rationale for a 7(C)
FOIA exemption is a relevant factor in the balancing in which
the agency engages when it determines whether to withhold
or release the material. Id. at 166-67. However, the Court
refrained from establishing specific steps that an agency must
follow to establish an individual's status before proceeding to
balance the interests, finding simply that

Without confirmation that the Government took certain
basic steps to ascertain whether an individual was dead

 or alive, we are unable to say whether the Government
reasonably balanced the interests in personal privacy
against the public interest in release of the information
at issue.

Id. at 167.

That is not the situation before us. The record shows, and
no one disputes, that once Davis and EOUSA became aware
of the possibility that Jacaman and Rivera might be dead,
Davis took a number of steps to determine their status, albeit
without success. The record documents these efforts in the
form of Davis's affidavit. Therefore, because we find that
EOUSA's efforts to determine whether Raul Rivera and
Carlos Jacaman were alive or dead were sufficient to meet its
obligation to take "basic steps" to investigate information that
could affect the privacy interests at stake, we affirm the
district court's grant of summary judgment in favor of
EOUSA regarding this challenge to EOUSA's reliance on
exemption 7(C). We will not attempt to establish a bright-
line set of steps for an agency to take in this situation.
FOIA, requiring as it does both systemic and case-specific
exercises of discretion and administrative judgment and ex-
pertise, is hardly an area in which the courts should attempt
to micro manage the executive branch.

In addition, we find that the government's affidavits and
the district court's ruling on the issue of segregability satisfy
the requirements of 5 U.S.C. s 552(b) and the precedent of
this circuit. Johnson claims that the Vaughn index EOUSA
provided offered insufficient justification for its claim that
none of the withheld documents could reasonably be segre-
gated for release. Johnson furthers argues that the affidavits
of two EOUSA attorneys, Gay and Davis, contained only
insufficient, conclusory statements on the segregability of
these documents, and the district court erred when it did not
make specific findings on the segregability of these docu-
ments. We disagree.

FOIA s 552(b) requires that even if some materials from
the requested record are exempt from disclosure, any "rea-
sonably segregable" information from those documents must

be disclosed after redaction of the exempt information unless
the exempt portions are "inextricably intertwined with ex-
empt portions." 5 U.S.C. s 552(b); Mead Data Cent., Inc. v.
Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977); see
also Trans-Pacific Policing Agreement v. United States Cus-
toms Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999). In order to
demonstrate that all reasonably segregable material has been
released, the agency must provide a "detailed justification"
for its non-segregability. Mead Data, 566 F.2d at 261. How-
ever, the agency is not required to provide so much detail
that the exempt material would be effectively disclosed. Id.

Here, EOUSA provided Johnson with a comprehensive
Vaughn index, describing each document withheld, as well as
the exemption under which it was withheld. In addition,
after this Court's decision in Trans-Pacific, Davis submitted
a supplemental affidavit in order to further address the issue
of segregability. In that statement, Davis explained that she
personally conducted a line-by-line review of each document
withheld in full and determined that "no documents contained
releasable information which could be reasonably segregated
from the nonreleasable portions." The combination of the
Vaughn index and the affidavits of Gay and Davis are suffi-
cient to fulfill the agency's obligation to show with "reason-
able specificity" why a document cannot be further segregat-
ed. See Armstrong v. Executive Office of the President, 97
F.3d 575, 578-579 (D.C. Cir. 1996).

In addition, the district court, citing this Court's decision in
Trans-Pacific, fulfilled its obligation to make a specific find-
ing on the issue of segregability. In Trans-Pacific, we held
that a district court has the obligation to consider the segreg-
ability issue sua sponte, regardless of whether it has been
raised by the parties, noting that we had many times remand-
ed in cases where the district court had failed to rule on
segregability. 177 F.3d at 1028.

When the district court in this case considered the issue of
segregability, it stated the following in its opinion:

On review of the Vaughn Index, the various Declara-
tions, and Plaintiff's objections, the Court is satisfied that

 the Defendant conducted an appropriate search of the
records in which references to Plaintiff are likely to exist
and that all relevant documents have been produced,
with the exception of segregable portions that are ex-
empt from disclosure.

Johnson v. EOUSA, No. 98-729, slip op. at 11 (D.D.C. April 2,
2001).

In two other instances in the course of the opinion, the
district court found specifically that indexed documents were
properly withheld when they were described as non-
segregable, and accepted Davis's conclusion as to the non-
segregability of portions of other documents. Because we
perceive no error in the findings of the district court that the
affidavits of Davis and Gay are sufficient to meet the segrega-
bility requirements of s 552(b) and our previous cases, we
affirm the district court's grant of summary judgment.

Dismissal of the Complaint Against Bonnie Gay for Fail-
ure to State a Claim

Turning to the district court's dismissal of the claim against
Bonnie Gay, we begin by noting that this Court reviews de
novo the dismissal of a complaint for failure to state a claim,
accepting the plaintiff's factual allegations as true and draw-
ing all inferences in the plaintiff's favor. Toolasprashad v.
Bureau of Prisons, 286 F.3d 576, 580 (D.C. Cir. 2002).
Johnson's complaint attempted to state a constitutional claim
for damages against Gay, alleging that her mishandling of the
FOIA request violated his constitutional right to due process
under the Fifth Amendment. Johnson argues that this viola-
tion demands the implementation of a Bivens-type remedy.
See Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). It is clear that courts are precluded from granting
such relief if the statute at issue provides a "comprehensive
system to administer public rights." Spagnola v. Mathis, 859
F.2d 223, 228 (D.C. Cir. 1988) (en banc). The district court
refused to fashion such a remedy for Johnson because it
found that FOIA represents just such a comprehensive
scheme, which provides requesters with the potential for

injunctive relief only, either to enjoin the withholding of
documents or to compel production of agency records. See 5
U.S.C. s 552 (a)(4)(B); Johnson v. EOUSA, No. 98-729, slip
op. at 5-6 (D.D.C. May 4, 2000). Because we agree with the
district court that the comprehensiveness of FOIA precludes
the creation of a Bivens remedy, and because Johnson's
claims are not otherwise actionable, we affirm the district
court's dismissal of the claim against Gay.

III. Conclusion

For the foregoing reasons, we conclude that the steps
taken by EOUSA to determine the status of Jacaman and
Rivera were sufficient to meet its obligation to investigate
information that could affect the privacy interest at stake, and
that the government's affidavits and the district court's find-
ings on segregability satisfy the requirements of FOIA. For
those reasons, we affirm the district court's grant of summary
judgment in favor of EOUSA regarding the challenge to its
reliance on exemption 7(C). Finally, because FOIA embodies
the type of statutory scheme that precludes courts from
fashioning damage remedies under Bivens, we affirm the
district court's dismissal of Johnson's constitutional claim.