United States Court of Appeals, District of Columbia Circuit
September 20, 2017
from the United States District Court for the District of
Columbia (No. 1:12-cv-00843)
Torrence E.S. Lewis argued the cause for appellant. With him
on the brief were Howard W. Anderson III and Scott Hodes.
Lilley, Attorney, U.S. Department of Justice, argued the
cause for appellee. With her on the brief was Mark B. Stern,
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
Before: Pillard and Wilkins, Circuit Judges, and Silberman,
Senior Circuit Judge.
SILBERMAN, SENIOR CIRCUIT JUDGE:
two decades ago, the Department of Justice sent a proposed
termination letter to one of its Assistant United States
Attorneys ("the Assistant") working in the Eastern
District of New York (EDNY). The letter alleged a series of
professional inadequacies. Appellant Bloomgarden, serving a
sentence of life imprisonment without parole, sought a copy
of that letter under FOIA.
Assistant served as lead prosecutor in an investigation of a
series of crimes committed by Appellant, leading to several
convictions in New York and California. After
Appellant's FOIA suit, most of the approximately 3, 600
pages of exhibits supporting the proposed termination letter
were turned over to Appellant - but not the letter itself.
The Appellant hopes that the content of the letter will
somehow help him in contesting his sentence. The government
declined to release the letter pursuant to Exemption 6 of
FOIA, which can protect personal privacy. The district court,
balancing the public interest against the Assistant's
privacy interest, determined that the latter clearly
outweighed the former and therefore granted summary judgment
for the government. We affirm. We also reject Appellant's
request that the judgment be modified.
Assistant worked in EDNY for at least three years. His
performance was evidently unsatisfactory. He was terminated
as a probationary employee in 1995, but after he appealed to
the Merit Systems Protection Board (MSPB) on the ground that
he had passed the probationary period, he was reinstated with
back pay. But the U.S. Attorney for EDNY promptly initiated
the process for termination of a permanent employee by
sending the Assistant a proposed termination letter. That
letter - the subject of this dispute - according to the
government, "set[s] forth the charges and
specifications, " but it explicitly "states that it
is not a final decision; that a final decision . . . will be
made by Dennis M. Corrigan, Chief of Staff to the Deputy
Attorney General; and that [the Assistant] has the right to
reply . . . ." We are told that three letters were
exchanged between the Assistant and Mr. Corrigan. Two have
been withheld under Exemption 6 and are not sought by
Appellant. In the third, which has been released, Mr.
Corrigan cryptically states: "I have forwarded your
request to [the Executive Office for U.S. Attorneys] for
action." It would appear that the Assistant's
request was for resignation rather than termination, but we
cannot be certain. In any event, although the Assistant may
have filed a notice of appeal with the MSPB, there is no
record of any proceeding and we can infer that
Assistant's employment terminated in 1997. The Assistant
currently practices law in the state of New York.
district judge, after examining the exhibits and reviewing
the letter in camera, determined that the letter
only described "instances of garden-variety incompetence
and insubordination" on the part of a single staff-level
attorney, and that "there is little public interest in a
single, largely unremarkable disciplinary matter regarding a
former AUSA [Assistant] who left government service two
decades ago." This did not outweigh the Assistant's
"strong interest in avoiding the professional
embarrassment that disclosure would likely cause." This
appeal followed. As the material facts are undisputed, we
review this case de novo.
6 of FOIA allows the government to withhold "personnel .
. . files the disclosure of which would constitute a
clearly unwarranted invasion of personal
privacy." 5 U.S.C. § 552(b)(6) (emphasis added).
Although Appellant is obviously motivated by his own
litigation, in considering the public interest, we are not
permitted to consider any special interest of the requestor -
rather we must consider only the interest of members of the
general public in learning "what their government is up
to." U.S. Dep't of Justice v. Reporters
Committee for Freedom of the Press, 489 U.S. 749, 773
sure, we have said that there is a substantial public
interest in the "potential innocence of individuals
sentenced to death, " Roth v. U.S. Dep't of
Justice, 642 F.3d 1161, 1176 (D.C. Cir. 2011), which
supported the legitimacy of a FOIA request for potentially
exculpatory material concerning a pending death sentence. But
as the circumstances here differ ...