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Bloomgarden v. United States Department of Justice

United States Court of Appeals, District of Columbia Circuit

October 31, 2017

Howard Bloomgarden, Appellant
United States Department of Justice, Appellee

          Argued September 20, 2017

         Appeal 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.

          Jaynie 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 an appearance.

          Before: Pillard and Wilkins, Circuit Judges, and Silberman, Senior Circuit Judge.



          Over 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.

         The 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.[1] 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.


         The 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.

         The 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.


         Exemption 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 (1989).

         To be 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 ...

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