United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2000 Decided July 18, 2000
No. 98-5492
Keith Maydak
Appellant
v.
United States Department of Justice,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 97cv01830)
Keith Maydak, appearing pro se, was on the brief for
appellant.
David C. Belt, appointed by the court, argued the cause as
amicus curiae on the side of appellant. With him on the
briefs was Deanne E. Maynard.
Daria J. Zane, Assistant United States Attorney, argued
the cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: Silberman, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Keith Maydak seeks the release
under the Freedom of Information Act ("FOIA") of copies of
law enforcement records compiled by the U.S. Attorney's
Office for the Western District of Pennsylvania in connection
with his criminal prosecution for various offenses. The gov-
ernment originally denied Maydak's FOIA request by invok-
ing FOIA Exemption 7(A), which permits the withholding of
law enforcement records which if produced "could reasonably
be expected to interfere with enforcement proceedings." 5
U.S.C. s 552(b)(7)(A) (1994). The district court granted sum-
mary judgment for the government on that basis, holding that
it could withhold the documents. Having now abandoned its
assertion of Exemption 7(A), however, the Department of
Justice ("DOJ") seeks a remand of this case so that it might
defend the applicability of other FOIA exemptions. Because
the DOJ has failed to explain adequately why it could not
have pleaded the other exemptions on which it wished to rely
in the original district court proceedings, we deny the motion
for remand, reverse the district court's judgment, and order
the release of all requested documents to Maydak.
I. Background
Maydak was convicted of wire fraud, mail fraud, access
device fraud, and money laundering in the United States
District Court for the Western District of Pennsylvania in
1994. He currently remains incarcerated for those crimes.
On September 23, 1994, while his appeal from his criminal
conviction was pending, Maydak filed with the United States
Attorney's Office for the Western District of Pennsylvania a
request under FOIA and the Privacy Act, 5 U.S.C. s 552a,
for "copies of any and all documents which pertain to me,
mention me, or list my name." On October 6, 1994, that
request was forwarded to the Executive Office for United
States Attorneys ("EOUSA").
On November 15, 1994, the EOUSA by letter denied May-
dak's request in full, relying solely on FOIA Exemption 7(A).
Exemption 7(A) exempts from FOIA disclosure requirements
"records or information compiled for law enforcement pur-
poses ... 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. s 552(b)(7)(A). The principal purpose of Exemption
7(A) is to prevent disclosures which might prematurely reveal
the government's cases in court, its evidence and strategies,
or the nature, scope, direction, and focus of its investigations,
and thereby enable suspects to establish defenses or fraudu-
lent alibis or to destroy or alter evidence. See NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 227, 241-42 (1978);
see also 37A Am. Jur. 2d Freedom of Information Acts s 303
(1994). Another recognized goal of Exemption 7(A) is to
prevent litigants from identifying and intimidating or harass-
ing witnesses. See Robbins Tire, 437 U.S. at 239-40. In its
denial letter, the EOUSA stated that "portions of the infor-
mation" contained in Maydak's file were "being considered in
connection with" his pending appeal, and thus that the gov-
ernment was withholding all of the requested documents
pursuant to Exemption 7(A). Maydak filed a timely appeal of
the EOUSA's denial with the Department of Justice's Office
of Information and Privacy ("OIP"). On August 8, 1995, the
Third Circuit affirmed Mayak's conviction and sentence. See
United States v. Maydak, 66 F.3d 313 (3d Cir. 1995) (table).
On May 29, 1996, the OIP informed Maydak that it was
remanding his FOIA request for reprocessing because the
EOUSA had concluded that Exemption 7(A) no longer ap-
plied.
On August 23, 1996, Maydak filed in the Western District
of Pennsylvania a motion pursuant to 28 U.S.C. s 2255 to
vacate his sentence. Maydak had waived his right to counsel
at sentencing. In his s 2255 motion, he claimed that the
waiver was not voluntary, knowing and intelligent because the
court had not first explained to him the consequences of
proceeding pro se, and thus that he was entitled to a new
sentencing. On September 11, 1996, the district court dis-
missed Maydak's s 2255 motion. In November 1996, May-
dak filed a motion in the Third Circuit for a certificate of
appealability to challenge that dismissal. On February 7,
1997, EOUSA again denied Maydak's FOIA request on Ex-
emption 7(A) grounds because of the pending s 2255 motion.
Maydak again filed a timely appeal with the OIP. On April
10, 1997, the Third Circuit denied Maydak's motion for a
certificate of appealability. And on June 12, 1997, the OIP
informed Maydak that it was again remanding his FOIA
request for reprocessing because the EOUSA had concluded
that Exemption 7(A) no longer applied.
In response to the OIP's July 1997 remand of his FOIA
request, on August 13, 1997, Maydak filed a complaint in the
United States District Court for the District of Columbia
seeking an order requiring the government to provide the
records and a list of all documents withheld. In proceedings
before the district court, Maydak asserted that the documents
he requested were not exempt from disclosure under FOIA
Exemption 7(A). Because he had already been convicted,
Maydak contended that there were no "enforcement proceed-
ings" pending with which release of the requested documents
could interfere. The DOJ maintained that Exemption 7(A)
continued to apply because the proceedings addressing May-
dak's post-conviction motions (including but not limited to the
August 23, 1996, s 2255 motion pending when his FOIA
request was reprocessed) derived from and were part of the
original law enforcement proceedings, and disclosure would
interfere with the DOJ's ability to respond to those motions.
The DOJ also argued that, should any of the motions result in
the vacating of Maydak's conviction, disclosure of the request-
ed documents could interfere with the government's ability to
prosecute him again.
To support its argument that disclosure would interfere
with those ongoing proceedings and to satisfy the govern-
ment's burden of proof in denying a FOIA claim, the DOJ
presented declarations from Paul E. Hull, the AUSA in the
Western District of Pennsylvania who prosecuted Maydak,
and from John F. Boseker, an attorney adviser in the
EOUSA. The declarations grouped the requested records
into categories and offered generic reasons for withholding
the documents in each. It is well established that the govern-
ment can satisfy its burden of proof under Exemption 7(A) by
utilizing this format. See, e.g., Robbins Tire, 437 U.S. at 236;
Bevis v. Department of State, 801 F.2d 1386, 1390 (D.C. Cir.
1986); Crooker v. Bureau of Alcohol, Tobacco and Firearms,
789 F.2d 64, 66-67 (D.C. Cir. 1986).
While his FOIA case was pending, on September 18, 1997,
Maydak filed in the Western District of Pennsylvania a
motion for a new trial based on newly discovered evidence
pursuant to Federal Rule of Criminal Procedure 33. On
March 25, 1998, the district court denied the motion, and
Maydak appealed. On May 27, 1999, the Third Circuit af-
firmed the district court's decision. See United States v.
Maydak, 182 F.3d 904 (3d Cir. 1999) (table). On September
16, 1999, Maydak filed a petition for a writ of certiorari in the
United States Supreme Court, which petition was subse-
quently denied on November 29, 1999. See Maydak v. Unit-
ed States, 120 S. Ct. 556 (1999).
Additionally, on October 22, 1997, Maydak filed in the
Third Circuit a motion for leave to file another s 2255
petition, seeking to reassert the invalid waiver of counsel at
sentencing issue. On November 17, 1997, the Third Circuit
denied that motion as well, but stayed its denial pending
disposition of another case. The Third Circuit finally dis-
posed of Maydak's motion to file another s 2255 petition on
January 11, 2000.
Returning to Maydak's FOIA claim, on September 1, 1998,
the district court agreed with the DOJ that the release of the
requested documents would interfere with enforcement pro-
ceedings in the event that Maydak's pending post-conviction
motions and appeals succeeded. Accordingly, the court held
that the government properly withheld the records under
Exemption 7(A), and granted summary judgment in favor of
the DOJ. Maydak appealed the district court's decision to
this court. We appointed an amicus curiae ("Amicus") and
certified two questions: (1) whether FOIA Exemption 7(A)
continues to apply as long as a criminal defendant is pursuing
a post-conviction collateral attack on the judgment or sen-
tence entered in a criminal enforcement proceeding to which
the withheld records relate; and (2) whether the DOJ,
through its submissions below, met its burden of justifying its
invocation of Exemption 7(A) to shield all the records it
identified as falling within the various record categories, as
well as the residual records not specifically categorized.
On June 18, 1999, the DOJ conceded partial error with
respect to the second of these issues, allowing specifically that
the statement in the Hull declaration that "[m]ost of the
documents can be placed into one of the [listed] categories"
was inadequate to meet the government's burden under Ex-
emption 7(A) with respect to those documents which had not
been categorized. The DOJ requested a remand to the
district court so that it might present evidence to justify the
withholding of the uncategorized documents.
Subsequently, the DOJ informed Maydak and Amicus on
July 30 and August 2, 1999, respectively, that "[d]ue to the
change in circumstances regarding a previously pending law
enforcement matter in which [Maydak] was involved," the
government was abandoning its assertion of Exemption 7(A)
with respect to Maydak's FOIA request. On August 6, 1999,
Amicus notified the DOJ that Maydak intended to appeal the
Third Circuit's May 27, 1999, decision to the Supreme Court,
and that his motion for leave to file a second s 2255 petition
was still pending in the Third Circuit. Nevertheless, on
August 26, 1999, the DOJ filed with this court a second
motion for remand based on changed circumstances, confirm-
ing that it had abandoned its reliance on Exemption 7(A) and
requesting the opportunity for the EOUSA to reprocess
Maydak's FOIA request and determine whether other FOIA
exemptions might apply.
On November 23, 1999, we dismissed as moot the govern-
ment's original motion for remand to review and categorize
the documents overlooked in the original proceedings and
ordered briefing and oral argument on the DOJ's second
motion for remand. A few days prior to oral argument,
Amicus notified this court that the EOUSA had released
some of the requested materials, but had invoked FOIA
Exemptions 2, 3, 5, 7(C), 7(D), and 7(E), 5 U.S.C. s 552(b)(2),
(b)(3), (b)(5), (b)(7)(C), (b)(7)(D), and (b)(7)(E) (1994), in with-
holding 1,524 pages of documents and redacting several of the
released documents. Amicus also indicated that the EOUSA
refused to release requested documents which originated
from other agencies and which the EOUSA had "forwarded"
back to them.
II. Analysis
We turn now to the DOJ's motion for remand. The
government bears the burden of proving the applicability of
any statutory exemption it asserts in denying a FOIA re-
quest. We have plainly and repeatedly told the government
that, as a general rule, it must assert all exemptions at the
same time, in the original district court proceedings. See
Washington Post Co. v. United States Dep't of Health &
Human Servs., 795 F.2d 205, 208 (D.C. Cir. 1986); Ryan v.
Department of Justice, 617 F.2d 781, 789, 792 (D.C. Cir.
1980); Jordan v. United States Dep't of Justice, 591 F.2d 753,
779-80 (D.C. Cir. 1978) (en banc), overruled on other grounds
by Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670
F.2d 1051, 1053 (D.C. Cir. 1981) (en banc). FOIA was
enacted to promote honesty and reduce waste in government
by exposing an agency's performance of its statutory duties to
public scrutiny. See United States Dep't of Justice v. Report-
ers Comm. for Freedom of the Press, 489 U.S. 749, 772-73 &
n.20 (1989). "The basic purpose of FOIA is to ensure an
informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the
governors accountable to the governed." Robbins Tire, 437
U.S. at 242. As we have observed in the past, the delay
caused by permitting the government to raise its FOIA
exemption claims one at a time interferes both with the
statutory goals of "efficient, prompt, and full disclosure of
information," Senate of Puerto Rico v. United States Dep't of
Justice, 823 F.2d 574, 580 (D.C. Cir. 1987) (quoting Jordan,
591 F.2d at 755), and with "interests of judicial finality and
economy." Id. (quoting Holy Spirit Ass'n v. CIA, 636 F.2d
838, 846 (D.C. Cir. 1980)). Requiring the simultaneous invo-
cation of exemptions also respects the general principle that
appellate courts do not normally consider issues that were
neither raised nor decided below. See Ryan, 617 F.2d at 789;
Jordan, 591 F.2d at 779. We note that other circuits also
require the government to assert all exemptions in the origi-
nal district court proceedings. See, e.g., Crooker v. United
States Parole Comm'n, 760 F.2d 1, 2 (1st Cir. 1985); Fendler
v. United States Parole Comm'n, 774 F.2d 975, 978 (9th Cir.
1985).
Although not its primary argument here, the DOJ suggests
that it adequately raised other FOIA exemptions before the
district court. Yet the DOJ acknowledges that it did not
"formally" invoke other FOIA exemptions in the original
district court proceedings. We have said explicitly in the past
that merely stating that "for example" an exemption might
apply is inadequate to raise a FOIA exemption. See Ryan,
617 F.2d at 792 n.38a. Instead the government must assert
the exemption in such a manner that the district court can
rule on the issue. See id. Nevertheless, the DOJ maintains
that references to other exemptions made in its motion for
summary judgment and in the Hull and Boseker Declarations
were adequate to preserve those issues.
A review of the record demonstrates that, while those
filings all mentioned the potential applicability of other ex-
emptions, the DOJ has to date made no attempt to substan-
tiate those claims. Nor has the government even been con-
sistent in specifying which other exemptions would apply.
Ultimately, after reprocessing Maydak's FOIA request in
the days immediately prior to oral argument, the EOUSA
withheld requested documents pursuant to Exemptions 2, 3,
5, 7(C), 7(D), and 7(E). In its brief before us, however, the
DOJ claimed the applicability of Exemptions 3, 5, 6, 7(C),
and 7(D). Meanwhile, the DOJ's motion for summary judg-
ment suggested only Exemptions 3, 5, and 7(D) as possibili-
ties; the Hull Declaration offered that Exemptions 3, 4, 5, 6,
7(C) and 7(D) "may be applicable"; and the Boseker Decla-
ration asserted conclusorily and without elaboration that all
the requested records were subject to Exemptions 3, 4, 5, 6,
7(C), 7(D), 7(E), and 7(F). Neither declaration made any
attempt to substantiate the applicability of other exemptions,
and the DOJ has never, at any time, offered further support
for such claims. These cursory, equivocal, and inconsistent
assertions are clearly inadequate to the task. The district
court had nothing upon which to rule one way or the other
with respect to the applicability of other FOIA exemptions.
Accordingly, under the standard articulated in Ryan, the
DOJ did not adequately assert other FOIA exemptions in
the proceedings below.
Indeed, unlike in many of the cases it cites as supporting a
remand--cases in which the DOJ merely fell short in its good
faith attempts to carry its burden of proof with respect to
other asserted exemptions, see, e.g., North v. Walsh, 881 F.2d
1088, 1100 (D.C. Cir. 1989); Bevis, 801 F.2d at 1390--here
the DOJ does not even claim that it tried to satisfy that
burden. Instead, the DOJ maintains that it should not have
to. The DOJ's primary argument before us is that the
unique nature of its burden of proof under Exemption 7(A)
relieves it of the burden of proving its case with respect to
other exemptions it seeks to assert in the original district
court proceedings. As noted above, under Robbins Tire and
its progeny, the DOJ satisfies its burden of proof under
Exemption 7(A) by grouping documents in categories and
offering generic reasons for withholding the documents in
each category. See, e.g., Robbins Tire, 437 U.S. at 236;
Bevis, 801 F.2d at 1390; Crooker, 789 F.2d at 66-67. The
DOJ maintains that, if it has to assert other exemptions
simultaneously with Exemption 7(A), that it will be forced to
produce a Vaughn index, see Vaughn v. Rosen, 523 F.2d 1136
(D.C. Cir. 1975), to satisfy its burden of proof with respect to
the other exemptions. The DOJ contends that the mere act
of producing a Vaughn index for the purpose of substantiat-
ing its invocation of another FOIA exemption will itself
disclose the very information that the more generalized cate-
gorical showing required for Exemption 7(A) was designed to
protect, and thereby undermine the very purposes of Exemp-
tion 7(A). To avoid this result, the DOJ seeks a blanket rule
that, if the government invokes Exemption 7(A) in the origi-
nal district court proceedings, then the government does not
have to claim the applicability of or satisfy its burden of proof
with respect to any other exemption until such time as the
government decides that Exemption 7(A) no longer applies or
a court tells the government that Exemption 7(A) does not
apply. In the DOJ's view, after the government or the courts
conclude that Exemption 7(A) is inapplicable, then the gov-
ernment should be allowed to start back at the beginning in
assessing the applicability of and satisfying its burden under
other exemptions. We disagree.
First and foremost, the statute says nothing that would
indicate that Exemption 7(A) is so unique. See 5 U.S.C.
s 552(b). Instead, the statute merely lists several exceptions
to FOIA's general policy of disclosure of all federal records
not otherwise exempt. See id. Nothing in the statute, either
express or implied, suggests that Exemption 7(A) should be
singled out for preferential treatment by the courts. Exemp-
tion 7(A) is simply one exception on a list of many. Numer-
ous cases exist in this and other circuits in which the govern-
ment has asserted Exemption 7(A) and other exemptions at
the same time, presumably without the dire consequences the
DOJ alleges here. See, e.g., Manna v. United States Dep't of
Justice, 51 F.3d 1158, 1162 & n.4 (3d Cir. 1995); Mapother v.
Department of Justice, 3 F.3d 1533, 1536 (D.C. Cir. 1993).
Moreover, despite the DOJ's concerns, the government
does not necessarily have to produce a Vaughn index to
justify denying a FOIA request under other exemptions,
either. Specific holdings of this court and the Supreme Court
permit the satisfaction of the government's burden of proof
under many of the other exemptions claimed here through
generic, categorical showings similar to that for Exemption
7(A). See, e.g., United States Dep't of Justice v. Landano,
508 U.S. 165, 179-80 (1993) (discussing circumstances in
which the government can substantiate a claim of Exemption
7(D) generically); Reporters Comm. for Freedom of the
Press, 489 U.S. at 777-80 (holding that the Robbins Tire
categorical approach to Exemption 7(A) is appropriate for
Exemption 7(C), and citing Federal Trade Comm'n v. Grolier
Inc., 462 U.S. 19 (1983), as establishing the same for Exemp-
tion 5); Church of Scientology v. Internal Revenue Service,
792 F.2d 146 (D.C. Cir. 1986) (permitting the IRS to support
its Exemption 3 claim generically with affidavits instead of a
Vaughn index). Indeed, in Church of Scientology, we recog-
nized that "when ... a claimed FOIA exemption consists of a
generic exclusion, dependent upon the category of records
rather than the subject matter which each individual record
contains, resort to a Vaughn index is futile." Church of
Scientology, 792 F.2d at 152. To that end, on other occasions,
based upon the circumstances at hand, we have upheld the
government's assertion of FOIA exemptions other than 7(A)
based on something less than a Vaughn index. See, e.g.,
Brinton v. Department of State, 636 F.2d 600, 606 (D.C. Cir.
1980) (upholding invocation of Exemption 5 on the basis of
affidavits and no Vaughn index).
Given the posture of this case, we are in no position to
decide whether affidavits alone would have sufficed to sub-
stantiate claims of other exemptions by the government here.
Nevertheless, some of the categories identified by the Hull
Declaration for purposes of Exemption 7(A) are of a nature
which would lend themselves to generic and categorical justi-
fication under other exemptions. For example, the Hull
Declaration identified among the requested documents
"grand jury materials," which the DOJ could have claimed
were also protected by FOIA Exemption 3 and Federal Rule
of Criminal Procedure 6(e); and "attorney client/work prod-
uct materials," which the government could have asserted fell
within FOIA Exemption 5. Yet before us the DOJ concedes
that it did not even attempt to substantiate its claims with
respect to these other exemptions. The DOJ's only justifica-
tion for that failure was its insistence that such assertions
would have required it absolutely to produce a Vaughn index,
an excuse plainly contradicted by the above-mentioned prece-
dents.
The DOJ may be correct that, in some cases, a Vaughn
index could disclose too much and undermine these goals,
particularly where trial or equivalent administrative hearing
has not yet occurred. See Solar Sources, Inc. v. United
States, 142 F.3d 1033, 1040 (7th Cir. 1998) (recognizing this
concern); Curran v. Department of Justice, 813 F.2d 473, 475
(1st Cir. 1987) (same). In fact, the same could be said with
respect to other exemptions as well. See Hayden v. National
Sec. Agency, 608 F.2d 1381, 1384-85, 1390 (D.C. Cir. 1979)
(acknowledging similar objections with respect to substantiat-
ing withholding under Exemptions 1 and 3). And in FOIA
cases, there is always the possibility that the district court
may conclude that the affidavits offered are inadequate to
satisfy the government's burden of proof. In such a case, the
government can still request that the court deny a plaintiff's
request for a Vaughn index in favor of more detailed affida-
vits, or that the court review the index or the requested
documents in camera, on the grounds that the production and
disclosure of a Vaughn index will in fact disclose the very
information the government seeks to protect. In other
words, the government has mechanisms by which it can
accomplish the goal of protecting sensitive information while
at the same time satisfying its burden of proof with respect to
other exemptions in the original district court proceedings.
Despite the bulk of precedent contradicting its position, the
DOJ contends that our opinion in Senate of Puerto Rico, 823
F.2d at 580-81, supports its characterization of Exemption
7(A) as meriting unique treatment. In Senate of Puerto Rico,
while the district court was in the process of considering
motions for summary judgment with respect to Exemption
7(A), the relevant criminal trials ended with guilty verdicts.
The DOJ by affidavit acknowledged that Exemption 7(A) no
longer applied, and the district court said that the agency
could present evidence to demonstrate that the requested
documents were properly withheld under other exemptions.
Upon review, after discussing at length the competing public
policy concerns, we concluded only that the district court did
not abuse its discretion in its handling of the case. See id.
We can find nothing in Senate of Puerto Rico that should be
construed as supporting the proposition that, when the gov-
ernment withdraws its reliance on Exemption 7(A) after the
district court has reached a final decision and an appeal has
been filed, the appropriate course of action is necessarily
remand to the agency for reprocessing of the FOIA request
in question. Accordingly, we conclude not only that the DOJ
did not genuinely assert exemptions other than Exemption
7(A) in the court below, but also that it had no legitimate
excuse for its failure to do so.
We have recognized two exceptions for unusual situations,
largely beyond the government's control: specifically, ex-
traordinary circumstances where, from pure human error, the
government failed to invoke the correct exemption and will
have to release information compromising national security or
sensitive, personal, private information unless the court al-
lows it to make an untimely exemption claim; and where a
substantial change in the factual context of the case or an
interim development in the applicable law forces the govern-
ment to invoke an exemption after the original district court
proceedings have concluded. See id. (relying on Jordan, 591
F.2d at 780). As to the first of these, DOJ does not claim
that human error was the cause of its failure to assert other
FOIA exemptions; and as to the second, the only change in
this case is the simple resolution of other litigation, hardly an
unforeseeable difference.
The DOJ contends that the existence of at least the first
round of Maydak's collateral attacks made the possibility of a
new trial sufficient to justify the continued application of
Exemption 7(A). Although Maydak still has collateral at-
tacks pending just like those that existed at the time the
EOUSA reprocessed his FOIA request, the DOJ suggests
that the Third Circuit's May 27, 1999, decision regarding
Maydak's motion for a new trial rendered sufficiently de
minimis the likelihood that further collateral attacks might
succeed, and thereby reduced the potential for future enforce-
ment proceedings, so that the government could no longer
justify withholding under Exemption 7(A). In other words,
according to the DOJ, the Third Circuit's May 27, 1999, order
affirming the district court's decision to dismiss Maydak's
motion for a new trial represents a substantial change in
circumstances, both factual and legal, governing Maydak's
FOIA request. The DOJ offers no analysis, however, as to
why that particular decision crossed any such threshold.
Moreover, the DOJ's argument about the decreasing likeli-
hood that Maydak's attacks on his conviction will succeed is
inconsistent with the concern, expressed both in its brief and
at oral argument, that Maydak will use the requested records,
once released, to craft new and improved challenges against
his conviction and sentence. The law of the case created by
the Third Circuit's denial of Maydak's motion for new trial
expressing one legal theory would not preclude that court
from granting a motion for new trial based on a different
legal theory derived from the requested documents. Accord-
ingly, we hold that there has been no substantial change in
the factual or legal context of this case, and thus that there is
no reason for us to deviate from our usual rule of requiring
the government to assert all its FOIA exemption claims in the
original district court proceedings.
In a final effort to obtain a remand, the DOJ argues that
public policy concerns about disclosing information that might
otherwise be exempt require this court to exercise its discre-
tion under 28 U.S.C. s 2106 to remand the case for further
consideration of the applicability of other FOIA exemptions.
That provision provides that "[any] court of appellate jurisdic-
tion may affirm, modify, vacate, set aside or reverse any
judgment ... and may remand the cause ... as may be just
under the circumstances." 28 U.S.C. s 2106 (1994). We
remand pursuant to 28 U.S.C. s 2106 when doing so best
serves such interests as judicial finality and economy and
avoiding just the sort of delay that is inappropriate in FOIA
cases, see, e.g., Trans-Pacific Policing Agreement v. United
States Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999), or
basic justice and fairness. See Powell v. United States
Bureau of Prisons, 927 F.2d 1239, 1243 (D.C. Cir. 1991).
Our precedents applying 28 U.S.C. s 2106 do not support
the DOJ's argument. In Trans-Pacific, for example, after
concluding that the district court had an affirmative duty to
consider sua sponte whether the agency could have segregat-
ed the exempt portions of the requested records despite the
plaintiff's failure to expressly suggest such action, we re-
manded the case because, otherwise, the plaintiffs could
merely file another, more specific FOIA request, which would
merely result in a new lawsuit, wasting time, expense, and
judicial resources. See Trans-Pacific, 177 F.3d at 1023,
1027-29. In the present case, the DOJ does not allege that
the district court failed to consider an issue that it properly
should have; moreover, the waste in time, expense, and
judicial resources is more likely to occur if we grant the
remand that the DOJ seeks than if we deny it.
Similarly, in Powell, this court considered the situation of a
pro se prisoner plaintiff appealing the district court's conclu-
sion that an internal agency manual was wholly exempt and
not segregable under FOIA Exemption 2. The court appoint-
ed an amicus curiae to represent the plaintiff on appeal, and
the amicus located an unpublished opinion in another FOIA
case which demonstrated that portions of the manual had
already been released. This court exercised its discretion to
grant a remand as serving "the interests of justice and
fairness" and the purposes of FOIA on the grounds that the
unpublished opinion was directly relevant to the plaintiff's
claim that the manual was segregable, yet was unavailable to
him at the time of the district court proceedings. Powell, 927
F.2d at 1243. The equities of the present case are not
comparable. The DOJ was not demonstrably unable to prove
its assertion of other FOIA exemptions; it simply chose not
to try.
The DOJ again raises Senate of Puerto Rico as an example
of this court exercising its discretion under 28 U.S.C. s 2106
to allow the government to invoke other FOIA exemptions
after Exemption 7(A) was deemed no longer to apply. Con-
trary to the DOJ's argument, however, in that case, we
explicitly left open the applicability of 28 U.S.C. s 2106 in a
case such as this one. See Senate of Puerto Rico, 823 F.2d at
581. Moreover, we explicitly said that "[w]e will not allow an
agency 'to play cat and mouse by withholding its most
powerful cannon until after the District Court has decided the
case and then springing it on surprised opponents and the
judge.' " Id. at 580 (quoting Grumman Aircraft Eng'g Corp.
v. Renegotiation Bd., 482 F.2d 710, 722 (D.C. Cir. 1973), in
which this court upheld an agency's motion for rehearing in
which it raised for the first time a claim of executive privi-
lege).
The DOJ's expressed concerns about public policy are so
general as to apply in virtually all situations in which the DOJ
declined for whatever reason to raise one or more FOIA
exemptions the first time around. The record before us
offers no more direct evidence of the applicability of other
exemptions than the general and conclusory assertions of the
Hull and Boseker Declarations. There is simply nothing in
the record to substantiate the DOJ's claims that dire conse-
quences will flow from the release of the requested docu-
ments. Furthermore, the DOJ's repeated statements that
other specified FOIA exemptions might apply, coupled with
its abject failure even to try to substantiate those assertions
generically through affidavits, strongly suggests the sort of
tactical maneuvering at a plaintiff's expense that we have
explicitly rejected. If anything, the notions of judicial finality
and economy, avoiding delay, and fairness prominent in our
s 2106 jurisprudence dictate an order in Maydak's favor.
Accordingly, we decline to exercise our discretion under that
provision to remand the case for further proceedings.
Conclusion
Because the DOJ failed to raise the other exemptions upon
which it wished to rely in the original district court proceed-
ings, and because the DOJ has offered no convincing reason
why it could not have done so, we deny the government's
motion for remand, reverse the district court's judgment, and
order the release of all requested documents to the appellant.
So ordered.