Sharif Mobley v. CIA , 806 F.3d 568 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2015 Decided November 13, 2015
No. 13-5286
SHARIF MOBLEY,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-02072)
(No. 1:11-cv-02073)
Kelly B. McClanahan argued the cause and filed the briefs
for appellant.
Mark S. Zaid was on the brief for amicus curiae J. William
Leonard in support of appellant.
H. Thomas Bryon III argued the cause for appellees. With
him on the brief were Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Vincent Cohen, Jr., Acting U.S.
Attorney, and Matthew Collette, Attorney.
Before: ROGERS, BROWN and SRINIVASAN, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Sharif Mobley seeks information
relating principally to his detention in Yemen from four federal
agencies. After submitting requests pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act,
id. § 552a, Mobley filed two lawsuits to compel disclosure.
The district court granted summary judgment to the agencies
and denied Mobley’s motion for reconsideration. Although his
appeal presents a thorny jurisdictional question, upon
determining that this court has jurisdiction to consider the
appeals in both of his cases, we conclude that Mobley’s
contentions fail on the merits under a straightforward application
of our precedent. We therefore affirm.
I.
Mobley, a United States citizen, Cmpt. ¶ 3, has been
detained in Yemen since January 26, 2010. According to one of
his attorneys, he was abducted from the streets of Sana’a,
Yemen’s capital city, by eight armed men who forced him into
a van, shooting him twice in the process. Decl. Cori A. Crider,
¶¶ 1, 8–16 (July 21, 2010). Mobley had lived in Sana’a with his
family since 2008, but in January 2010, he contacted U.S.
Embassy officials to arrange for return to the United States. Id.
¶¶ 11–13. While in custody, Mobley claims that he was
interrogated by agents from the Federal Bureau of Investigation
(“FBI”), the Defense Department, and other unspecified U.S.
federal agencies. Id. ¶¶ 32–51. Although it remains unclear to
Mobley why he was initially detained, id. ¶ 11, he is being held
on allegations that he shot two hospital guards — one fatally —
during an attempted escape while he was being treated for
injuries sustained during his abduction and detention, id. ¶¶
26–54.
 3
On July 22, 2010, Mobley submitted an information
request, pursuant to FOIA and the Privacy Act, to various
federal agencies, including the FBI, the Central Intelligence
Agency (“CIA”), the Department of Defense, and the
Department of State. He sought information on: (1) his
abduction; (2) the involvement of various federal agencies in his
abduction and interrogation; and (3) the “wider pattern of U.S.-
sponsored sweeps and proxy detention in Yemen from January
2010, of which [his] seizure is a part.” FOIA/Privacy Act
Request at 2 (July 22, 2010). In addition, he sought “all records
in any way relating to, pertaining to, or mentioning [Mobley] by
any and all persons or entities, including all persons acting on
behalf of the United States.” Over a year later, Mobley’s
counsel sent two e-mails to the FBI, before it had responded to
his original request, asking that it search particular repositories
of analog and digital records, which we refer to as record
systems.
On November 22, 2011, Mobley filed two lawsuits in the
federal district court. See 5 U.S.C. § 552(a)(4)(B); id.
§ 552a(g)(1)(B). In the first he sued the Justice Department and
the Defense Department. The following spring the FBI partially
released to Mobley 85 pages of responsive records, withholding
portions pursuant to FOIA Exemptions 1, 6, and 7(C) and
Privacy Act Exemption (j)(2). See Decl. Dennis J. Argall,
Assistant Section Chief, Records/Info. Dissemination Section,
FBI, ¶¶ 24, 34 (June 29, 2012) (“First Argall Decl.”). We will
refer to this lawsuit as the FBI case. In the second lawsuit, he
sued the CIA and the State Department. Although Mobley sent
the CIA the same information request that he sent the FBI, the
Defense Department, and the State Department, he also sent the
CIA a separate request, on August 15, 2011, for “all [CIA]
records about Mr. Mobley and [his wife].” The appeal in his
second lawsuit involves only the CIA’s response to the August
15 request, and we will refer to the second lawsuit as the CIA
4
case. The CIA released some responsive records, which the
Defense Intelligence Agency (“DIA”) had referred to it in
response to Mobley’s information requests to the Defense
Department. Decl. Michele L. Meeks, Chief, Pub. Info.
Programs Div., CIA, ¶¶ 5–9 (Sept. 4, 2012). The CIA withheld
six of the DIA documents under FOIA Exemption 3, id. ¶ 7, and
as not subject to disclosure under the Privacy Act, Decl. Alesia
Y. Williams, Chief, FOIA Servs. Section, DIA, ¶ 4 (Oct. 12,
2012).
The district court ruled on the government’s motions for
summary judgment in both cases in a single memorandum
opinion of February 7, 2013. See Mobley v. CIA, 924 F. Supp.
2d 24, 74 (D.D.C. 2013). The court granted summary judgment
in full to the defendants, with the exception of the CIA, and in
the FBI case entered “a final and appealable Order.” Although
it rejected most of Mobley’s challenges to the CIA’s search for
responsive records and decisions to withhold certain
information, the district court ordered the CIA to conduct a
supplemental search in the Director of National Intelligence’s
Open Source Center (“OSC”) and to release any non-exempt
records it located, id. at 37–38. The CIA subsequently filed a
joint notice regarding OSC records. On June 7, 2013, the
district court granted summary judgment in full in the CIA case
and directed that case be closed. Four days later, the district
court consolidated Mobley’s two lawsuits.
On June 17, 2013, Mobley moved for reconsideration on the
grounds that the district court erred by failing to: (1) require the
FBI to search its e-mail systems; (2) require the CIA to disclose
six of the documents referred to it by the DIA; and (3) conduct
in camera review of two pages of responsive records withheld
by the FBI. The district court treated Mobley’s motion as filed
5
pursuant to Federal Rule of Civil Procedure 59(e),1 and denied
reconsideration on August 7, 2013.
Mobley appeals. Our review of the grant of summary
judgment is de novo. Morley v. CIA, 508 F.3d 1108, 1114 (D.C.
Cir. 2007). Our review of the denial of a Rule 59(e) motion is
for abuse of discretion, see Messina v. Krakower, 439 F.3d 755,
759 (D.C. Cir. 2006), as is the decision not to inspect in camera
documents withheld under a FOIA exemption, Larson v. Dep’t
of State, 565 F.3d 857, 869–70 (D.C. Cir. 2009). In light of our
recent decision in DiBacco v. U.S. Army, 795 F.3d 178 (D.C.
Cir. 2015), Mobley has withdrawn his appeal regarding the DIA
and several challenges to the district court’s rulings regarding
the CIA.
II.
The court must first address the threshold question of
whether it has jurisdiction to consider Mobley’s challenges to
the district court’s grants of summary judgment in the FBI and
the CIA cases. Our review of jurisdictional issues is de novo,
Foretich v. ABC, 198 F.3d 270, 273 (D.C. Cir. 1999), and this
includes whether Mobley’s Rule 59(e) motion was timely filed,
Winslow v. FERC, 587 F.3d 1133, 1135 (D.C. Cir. 2009). The
jurisdictional issue is complicated by the district court’s decision
not to consolidate the FBI and CIA cases until after it had
granted summary judgment in both cases. It is also complicated
by the fact that upon granting summary judgment in the FBI
case on February 7, 2013, the district court also entered “a final
1
Federal Rule of Civil Procedure 59(e) provides that “[a]
motion to alter or amend a judgment must be filed no later than 28
days after the entry of the judgment.”
6
and appealable Order.” See FED. R. CIV. P. 58(a).2 The district
court did not enter such an order in the CIA case until it granted
summary judgment in full on June 7, 2013. Mobley filed his
notice of appeal on September 16, 2013. The timeliness of
Mobley’s appeal therefore depends on whether his motion for
reconsideration under Rule 59(e) was timely filed. If so, then
his time to file a notice of appeal was tolled. FED. R. APP. P.
4(a)(4)(A)(iv). If not, then Mobley’s appeal of summary
judgment in the FBI case was also untimely, and this court lacks
jurisdiction.
A.
Because timing is central to the jurisdiction question, a brief
chronology of the relevant events follows. As noted, on
February 7, 2013, the district court granted summary judgment
in the FBI case and entered a final, appealable order, see FED. R.
CIV. P. 58(a). At the same time, in the CIA case, it granted
summary judgment to the State Department, but granted
summary judgment only in part to the CIA, remanding for the
CIA to conduct a supplemental records search. Shortly
thereafter, on February 19, the district court denied a consent
motion to consolidate the cases without prejudice, on the ground
that the cases were not in the same procedural posture; the FBI
case was closed while the CIA case remained open.
A week later, Mobley filed, in light of the “high degree of
overlap between these cases,” a motion to stay the FBI case until
the district court had finally resolved the CIA case, so that the
“motions for reconsideration or appeals to the D.C. Circuit” in
both cases could be filed and adjudicated at the same time. The
2
Federal Rule of Civil Procedure 58(a) provides that “[e]very
judgment and amended judgment must be set out in a separate
document,” subject to exceptions inapplicable here.
7
district court granted the motion and stayed the FBI case until “a
final appealable order has been issued” in the CIA case.
On June 7, 2013, the district court granted summary
judgment in full in the CIA case and entered a final, appealable
order. It also lifted the stay in the FBI case. Four days later, it
consolidated the two cases.
On June 17, 2013, Mobley moved for partial
reconsideration, pursuant to Federal Rules of Civil Procedure
59(e) and 60(b). Although the government neither opposed
Mobley’s motion for a stay nor objected to the district court’s
stay order, it opposed his motion for reconsideration as untimely
in the FBI case. The district court, which treated Mobley’s
motion as filed pursuant to Rule 59(e), acknowledged that it
lacked authority to extend the filing deadline for a Rule 59(e)
motion. Mem. & Order at 7–8 (Aug. 7, 2013) (citing FED. R.
CIV. P. 6(b)(2),3 Derrington-Bey v. D.C. Dep’t of Corr., 39 F.3d
1224, 1225 (D.C. Cir. 1994), and Ctr. for Nuclear
Responsibility, Inc. v. U.S. Nuclear Regulatory Comm’n, 781
F.2d 935, 941 (D.C. Cir. 1986)). But the court concluded that its
stay power, which is “incidental to the power inherent in every
court to control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for
litigants,” id. at 8 (quoting Landis v. N. Am. Co., 299 U.S. 248,
254 (1936)), had “halted” the proceedings in the FBI case until
the court issued a final appealable order in the CIA case, id. In
other words, the district court concluded that its stay order did
not “extend” the time to file a Rule 59(e) motion within the
meaning of Rule 6 because its stay order was an exercise of its
3
Federal Rules of Civil Procedure 6(b)(2) provides that “[a]
court must not extend the time to act under Rules 50(b) and (d), 52(b),
59(b), (d), and (e), and 60(b).”
8
inherent power to manage its docket. Having found Mobley’s
Rule 59(e) motion timely filed, the district court denied it on the
merits on August 7, 2013. Mobley filed his notice of appeal on
September 16, 2013.
B.
The government, while acknowledging Mobley’s appeal of
the denial of his motion for reconsideration is timely, suggests
that this court’s jurisdiction over the grants of summary
judgment of February 7 and June 7 is “less clear,” Appellees’
Br. 2. For the following reasons, we conclude the court has
jurisdiction over the entirety of Mobley’s appeal.
1. With regard to the FBI case, the government declined,
curiously, to take a position on whether the court lacks
jurisdiction. Presumably, the government’s summarily stated
intimation is based on the fact that where one of the parties is a
United States agency, a notice of appeal must be filed within 60
days after entry of the judgment or order appealed. FED. R. APP.
P. 4(a)(1)(B)(ii). That time began to run in the FBI case when
the district court entered the Rule 58(a) order on February 7,
2013. Id. 4(a)(7)(A)(ii).4 Only if Mobley timely filed a Rule
59(e) motion — that is, within 28 days of the grant of summary
judgment — would the time to appeal not begin to run until the
4
Federal Rule of Appellate Procedure 4(a)(7)(A) provides
that “[a] judgment or order is entered for purposes of this Rule 4(a) . . .
(ii) if Federal Rule of Civil Procedure 58(a) requires a separate
document, when the judgment or order is entered in the civil docket
. . . and when . . . the judgment or order is set forth on a separate
document . . . .”
9
entry of the order disposing of his motion. Id. 4(a)(4)(A)(iv).5
The government opposed Mobley’s Rule 59(e) motion as
untimely. Were the government correct, then Mobley would
have had to file his appeal in the FBI case within 60 days of
February 7, 2013, and because he did not, this court would lack
jurisdiction.
Notwithstanding the government’s demurrer, this court
must satisfy itself of its jurisdiction. Gonzalez v. Thaler, 132
S. Ct. 641, 648 (2012). We agree with the district court that
Mobley’s Rule 59(e) motion was timely filed in the FBI case but
for a different reason, which avoids addressing the complex
interaction between the district court’s inherent stay power, Rule
6(b)(2), and Rule 58(a). Instead, we conclude we have
jurisdiction under the unique circumstances doctrine, which
affords the opportunity, in view of the non-jurisdictional nature
of the federal rules at issue, to excuse the tardiness of a late-filed
Rule 59(e) motion.
Prior to Bowles v. Russell, 551 U.S. 205 (2007), the unique
circumstances doctrine permitted appellate courts to excuse
untimeliness where a party acted belatedly in reliance on an
erroneous district court ruling. See Thompson v. INS, 375 U.S.
384 (1964); Harris Truck Lines, Inc. v. Cherry Meat Packers,
Inc., 371 U.S. 215 (1962). The doctrine, however, applied “only
where a party who could have filed a timely notice of appeal is
5
Federal Rule of Appellate Procedure 4(a)(4)(A) provides:
If a party timely files in the district court any of the following
motions under the Federal Rules of Civil Procedure, the time
to file an appeal runs for all parties from the entry of the order
disposing of the last such remaining motion: . . .
(iv) to alter or amend the judgment under Rule 59; . . . .
10
lulled into missing the deadline by a formal court order or
ruling, containing specific assurances that action which extends
or postpones the deadline has properly been taken . . . .” Moore
v. S.C. Labor Bd., 100 F.3d 162, 162 (D.C. Cir. 1996); see also
Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989). In
Bowles, 551 U.S. at 214, the Supreme Court expressly overruled
Thompson and Harris Truck Lines and rejected the unique
circumstances doctrine, but only “to the extent [it] purport[s] to
authorize an exception to a jurisdictional rule.” Id. That
qualifying dependent clause left open the doctrine’s continued
vitality as an exception to a non-jurisdictional rule. Cf.
Gutierrez v. Johnson & Johnson, 523 F.3d 187, 198–99 & n.10
(3d Cir. 2008); see also United States v. Garduno, 506 F.3d
1287, 1291–92 & n.5 (10th Cir. 2007); 4B CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1168 (4th ed. 2008); 16A id. § 3950.1.
“Only Congress may determine a lower federal court’s
subject-matter jurisdiction.” Kontrick v. Ryan, 540 U.S. 443,
452 (2004). Timing rules are therefore jurisdictional if they
implement a statutory time limit, whereas timing rules lacking
a statutory basis are “simple ‘claim-processing rule[s]’” subject
to waiver and forfeiture. Bowles, 551 U.S. at 213. The timing
rules at issue here — Federal Rules of Civil Procedure 6(b)(2)
and 59(e) and Federal Rule of Appellate Procedure (“FRAP”)
4(a)(4)(A)(iv) — are claim-processing rules. Obaydullah v.
Obama, 688 F.3d 784, 788–91 (D.C. Cir. 2012); see also
Eberhart v. United States, 546 U.S. 12, 19 (2005); Kontrick, 540
U.S. at 454; Wilburn v. Robinson, 480 F.3d 1140, 1146 n.11
(D.C. Cir. 2007); Advanced Bodycare Solutions, LLC v. Thione
Int’l, Inc., 615 F.3d 1352, 1359 n.15 (11th Cir. 2010); Lizardo
v. United States, 619 F.3d 273, 274 (3d Cir. 2010); Dill v. Gen.
Am. Life Ins. Co., 525 F.3d 612, 618 (8th Cir. 2008); Nat’l
Ecological Found. v. Alexander, 496 F.3d 466, 475 (6th Cir.
11
2007); In re Onecast Media, Inc., 439 F.3d 558, 562 (9th Cir.
2006).
Unique circumstances excuse Mobley’s untimely filing of
his Rule 59(e) motion. On the same day, Mobley filed two
complaints in the district court seeking virtually the same relief
under FOIA and the Privacy Act. Except for the federal
agencies he sued as defendants, his two complaints were
grounded in functionally identical FOIA and Privacy Act
requests. The district court’s treatment of the two cases reflects
their near-equivalence. Most notably, the district court issued a
single memorandum opinion ruling on the defendants’ motions
for summary judgment in both cases. Mobley and the
government, which consented to Mobley’s motion to
consolidate, agreed that, in view of anticipated post-judgment
motions and appeals, the most efficient way to proceed was for
the district court to handle both cases as one. Indeed, Mobley
tried in two different ways to have the district court formally
treat his two cases the way it was treating them in practice — as
a single case. The second effort — his stay motion —
succeeded. The district court entered an order staying the FBI
case until it entered a final, appealable order in the CIA case.
A litigant in Mobley’s position would reasonably have
concluded that he could delay filing a Rule 59(e) motion until
after the district court had finally ruled on the motion for
summary judgment in the CIA case, closing that case, without
jeopardizing his opportunity to appeal the grant of summary
judgment in the FBI case. The court had entered a stay order in
response to his request to align post-judgment motion practice
in his two cases, and the opposing parties did not object. Thus,
Mobley missed the deadline for filing a Rule 59(e) motion in the
FBI case in reliance on a stay order that, in view of his stated
reason for seeking a stay, provided specific assurances that he
12
would not need to file post-judgment motions until after the
district court lifted the stay.
Under the unique circumstances doctrine, because no
jurisdictional rule is implicated, Mobley’s Rule 59(e) motion
was timely filed and therefore tolled the time for filing a notice
of appeal of the February 7 order in the FBI case until the
district court ruled on his Rule 59(e) motion. FED. R. APP. P.
4(a)(4)(A)(iv), see supra note 5. Mobley needed only to “file[]
his notice of appeal within 60 days after the district court denied
his Rule 59(e) motion,” Obaydullah, 688 F.3d at 788, which he
did.
Our conclusion that the court has jurisdiction is reinforced
by an alternative basis for that conclusion, which would involve
treating the district court’s grant of Mobley’s unopposed motion
for a stay as a motion for extension of time under FRAP
4(a)(5)(C).6 Although the 60-day period for taking an appeal in
FRAP 4(a)(1)(B) is based on 28 U.S.C. § 2107(b), and is
therefore jurisdictional, see Obaydullah, 688 F.3d at 788, this
court has distinguished that provision from other provisions in
FRAP 4(a). Under FRAP 4(a)(5)(A)(i), the district court may
extend the time to file a notice of appeal, but FRAP 4(a)(5)(C)
limits such extensions to 30 days. In granting a stay that
contemplated prolonging the time to file an appeal, the district
court effectively extended the time to appeal beyond the 30-day
limit. FRAP 4(a)(5)(C)’s 30-day cap, however, unlike FRAP
4(a)(1)(B), is a claim-processing rule. Youkelsone v. FDIC, 660
F.3d 473, 475–76 (D.C. Cir. 2011). Objections based on FRAP
6
Federal Rule of Appellate Procedure 4(a)(5)(C) provides:
No extension under this Rule 4(a)(5) may exceed 30 days
after the prescribed time or 14 days after the date when the
order granting the motion is entered, whichever is later.
13
4(a)(5)(C) therefore can be forfeited or waived. The
government did not object to either Mobley’s motion for a stay
or to the stay order as an over-long extension of the time to
appeal, and Mobley delayed noting his appeal in the FBI case in
reliance on the stay order. The government therefore forfeited
any timeliness objection to Mobley’s filing a notice of appeal.
For largely the same reasons that the unique circumstances
present here render Mobley’s Rule 59(e) motion timely, they
also compel the conclusion that the time for filing a notice of
appeal had not expired before Mobley filed his Rule 59(e)
motion.
In re Sealed Case (Bowles), 624 F.3d 482 (D.C. Cir. 2009),
does not require a contrary conclusion regarding this court’s
jurisdiction over Mobley’s appeal. There, the court held that
even though Rule 60(b) is a claim-processing rule, a party
cannot use it to circumvent FRAP 4(a)(6), which limits the time
to reopen the window for filing an appeal after it has closed.
Sealed Case, 624 F.3d at 486–87. But our conclusion that
jurisdiction exists here rests on claim-processing rules, either
Rule 59(e) or FRAP 4(a)(5)(C). By contrast, the rule at issue in
Sealed Case, FRAP 4(a)(6), is jurisdictional. Bowles, 551 U.S.
at 213; Sealed Case, 624 F.3d at 483. There is no evidence that
Mobley is deploying “sham maneuvers . . . to avoid hard
jurisdictional deadlines . . . .” Sealed Case, 624 F.3d at 483.
Rather, much as the district court’s analysis of its stay power
reflects, Mobley sought and relied on the stay order out of a
good-faith interest in litigation efficiency and judicial economy.
See Mem. & Order at 8 (Aug. 7, 2013).
The government’s remaining objection, to the manner in
which the district court counted the 28-day period for filing a
Rule 59(e) motion, also fails. The government maintains that
even if the stay tolled the time to file a Rule 59(e) motion, the
district court ought not to have excluded from the Rule 59(e)
14
period February 26, the day the court entered the stay order.
Oddly, at the same time as it puts forward this argument, the
government calls into question the argument’s relevance: In a
footnote in its brief, it states that “[i]t is not clear whether [the
time computation rules at issue] apply by their terms because the
term of the stay was not a ‘period . . . stated in days or a longer
unit of time.’” Appellees’ Br. 4 n.2 (quoting FED. R. CIV. P.
6(a)(1)(A) and FED. R. APP. P. 26(a)(1)(A)). No matter. Even
applying the counting rules in Rule 6 and FRAP 26, the Rule
59(e) motion was timely. The inclusion or exclusion of
February 26 is irrelevant. Counting February 26 against
Mobley’s 28 days, the last day Mobley could have filed his
motion was June 15 or 16, depending on whether the tally
includes June 7, the day the district court lifted the stay. June
15, 2013, was a Saturday, and June 16 was a Sunday. Mobley
therefore had until the end of the day the following Monday to
file his motion. FED. R. CIV. P. 6(a)(1)(C).7 That Monday was
June 17, the day Mobley filed his motion.
As a final point, we note that some of the complexity of the
jurisdictional question presented here could have been avoided
had the district court stayed entry of the Rule 58(a) order in the
FBI case until entry of a final, appealable order in the CIA case,
instead of staying the FBI case after entering the Rule 58(a)
order. This would not interfere with the district court’s control
of its docket, and it would avoid the need to consider the
interrelationship between Rules 6(b)(2) and 58(a) and the district
court’s inherent stay power.
7
Federal Rule of Civil Procedure 6(a)(1) provides that
“[w]hen the period is stated in days or a longer unit of time: . . . (C)
include the last day of the period, but if the last day is a Saturday,
Sunday, or legal holiday, the period continues to run until the end of
the next day that is not a Saturday, Sunday, or legal holiday.”
15
2. There is no merit to the government’s suggestion this
court lacks jurisdiction to address Mobley’s appeal of the June
7, 2013, order granting summary judgment in full in the CIA
case. Although the government’s briefing on this point is not a
model of clarity, its argument appears to be that Mobley has
forfeited his challenge to the district court’s February 7 partial
grant of summary judgment to the CIA by failing to mention, in
his notice of appeal, the June 7 Rule 58(a) order that made the
February 7 summary judgment ruling in the CIA case final and
appealable. The notice of appeal requirements in FRAP 3 are
jurisdictional. See Gonzalez, 132 S. Ct. at 652.
“This circuit adheres to the ‘rule that a mistake in
designating the specific judgment or order appealed from should
not result in loss of the appeal as long as [1] the intent to appeal
from a specific judgment can be fairly inferred from the
appellant’s notice (and subsequent filings) and [2] the opposing
party is not misled by the mistake.’” Messina, 439 F.3d at 759
(quoting Foretich, 198 F.3d at 273 n.4). The second prong is
quickly disposed of. There is no indication that the government
was misled about Mobley’s intent, for it has fully briefed the
issues he raised with respect to the CIA.
Under the first prong, Mobley plainly intended to appeal the
grant of summary judgment to the CIA. He appended to his
notice of appeal the February 7 summary judgment order, which
addressed not only the FBI case but granted summary judgment
to the State Department and partial summary judgment to the
CIA. Further, this court has looked to filings other than the
notice of appeal to establish intent, including an appellant’s
statement of issues, Sinclair Broad. Grp. v. FCC, 284 F.3d 148,
158 (D.C. Cir. 2002), and Mobley’s statement of issues
challenged several rulings in favor of the CIA made by the
district court in its February 7 summary judgment order.
Specifically, he identified in paragraphs 6 and 9 of his statement
16
of issues the district court’s ruling that the CIA had not waived
its so-called Glomar response and that the CIA’s invocation of
the response was procedurally sound. Mobley, 924 F. Supp. 2d
at 45–50.
We turn to the merits of Mobley’s contentions.
III.
FOIA mandates disclosure of agency records upon request,
unless they are subject to one of the nine statutory exemptions.
See Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011); see also
5 U.S.C. §§ 552(a)(3)(A), (b)(1)–(9). “In order to obtain
summary judgment the agency must show that it made a good
faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the
information requested.” Oglesby v. U.S. Dep’t of Army, 920
F.2d 57, 68 (D.C. Cir. 1990). This court applies a
reasonableness standard to determine whether an agency
performed an adequate search, Campbell v. U.S. Dep’t of
Justice, 164 F.3d 20, 27 (D.C. Cir. 1998), and our review is
heavily fact-dependent, Weisberg v. U.S. Dep’t of Justice, 705
F.2d 1344, 1351 (D.C. Cir. 1983). The agency bears the burden
of justifying the applicability of FOIA exemptions, which are
exclusive and must be narrowly construed. Elec. Privacy Info.
Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C.
Cir. 2015).
A.
Adequacy of search. Mobley contends the district court
erred in ruling that the FBI had performed an adequate search in
response to his FOIA request. Our review of the adequacy of an
agency’s search is de novo. See Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). The court may rely
on a “reasonably detailed affidavit, setting forth the search terms
17
and the type of search performed, and averring that all files
likely to contain responsive materials (if such records exist)
were searched.” Oglesby, 920 F.2d at 68. Agency affidavits —
so long as they are “relatively detailed and non-conclusory” —
are “accorded a presumption of good faith, which cannot be
rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground
Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
Over a year after Mobley’s initial request for all records
pertaining to him, his attorney sent two e-mails to the FBI
requesting that it search specific record systems. Among them
were all “shared drives,” in particular those for FBI headquarters
and the New Jersey and New York Field Offices, and record
systems located in the Washington and Baltimore Field Offices.
One of the e-mails linked to a news story attributing to the FBI
the statement that the Baltimore Field Office was working on
Mobley’s case. In response to Mobley’s request, the FBI
searched its Central Records System (“CRS”) and Electronic
Surveillance (“ELSUR”) Indices. Generally, Mobley maintains
that the FBI was required to search — or explain in greater
detail than it did why it did not search — the record systems he
asked it to search. In addition, although Mobley did not
specifically ask the FBI to search e-mail systems, he insists the
FBI was required to search them as record systems reasonably
likely to contain responsive materials.
The detailed declarations of Dennis J. Argall, the assistant
section chief of the FBI’s Record/Information Dissemination
Section, demonstrate that the FBI’s search was adequate.
Among other things, Argall explains the automation of the CRS
in the 1990s and describes the wide array of databases
incorporated into it, such that the CRS houses “all information
which [the FBI] acquire[s] in the course of fulfilling its
18
mandated law enforcement responsibilities.” First Argall Decl.
¶¶ 25–30; Decl. Dennis J. Argall, Assistant Section Chief,
Records/Info. Dissemination Section, FBI, ¶¶ 3–9 (Oct. 12,
2012) (“Second Argall Decl.”). He sets out in detail what search
terms the FBI employed, and concludes that the FBI’s search of
the CRS — alongside its search of the ELSUR Indices — was
reasonably likely to produce the information Mobley requested.
Second Argall Decl. ¶ 9b.
Argall explains further that the specific record systems
Mobley asked the FBI to search either are captured by the CRS
or are unlikely to contain responsive records. Id. ¶¶ 3–9.
Likewise, he states that e-mail systems also are not reasonably
likely to result in additional responsive records because the
records in them are redundant of records stored in the CRS. Id.
¶ 9b. Moreover, according to Argall, some record systems that
Mobley asked the FBI to search — the so-called “I-Drive” and
“tickler” files — are no longer in use. In 2001, all FBI field
offices were instructed to perform comprehensive searches of
the I-Drives in order to determine if I-Drive files were already
in the FBI’s automated search system. Id. ¶ 9a. If they were
not, those files were added to that system, and thereafter the I-
Drive was eliminated. Id. As for “tickler” files, they are
“historical in nature,” and the FBI no longer requires that they
be created or maintained. Id. ¶ 7. The files were duplicates that
contained copies of documents already indexed in the CRS.
Regarding the newspaper story about the Baltimore Field Office,
Argall states that access to CRS files in FBI field offices is also
obtained through the general CRS search. First Argall Decl.
¶ 27. Additionally, if an exclusion has been employed in this
case, it has been amply justified by the in camera, ex parte
declaration submitted by the FBI.
Mobley’s specific challenges to the adequacy of the FBI’s
search and the good faith of Argall’s declarations are thus
19
unpersuasive. Had the FBI only searched the record systems
“most likely” to contain responsive records, its search would be
inadequate. See DiBacco, 795 F.3d at 190; Oglesby, 920 F.2d
at 68. But, as Mobley concedes, that is not what the FBI’s
declarations state it did here. Still, Mobley insists his selective
close reading of Argall’s declarations, taken alongside FBI
declarations in other FOIA cases, demonstrates that Argall’s
declarations actually say that the FBI limited its search to the
record systems “most likely” to contain responsive records.
Neither Argall’s words nor the FBI declarations that Mobley
identified from other FOIA cases call into question the good
faith of Argall’s representations. Although Mobley may believe
that Argall’s sworn statements are disingenuous, he has offered
no basis on which this court could conclude the presumption of
good faith has been overcome.
Further, a request for an agency to search a particular
record system — without more — does not invariably constitute
a “lead” that an agency must pursue. A “lead” must be “both
clear and certain” and “so apparent that the [FBI] cannot in
good faith fail to pursue it.” Kowalczyk v. Dep’t of Justice, 73
F.3d 386, 389 (D.C. Cir. 1996). For example, in Campbell, 164
F.3d at 27–28, the court held that the FBI could not decline to
search beyond the CRS where records in the CRS themselves
indicated that there were undiscovered responsive records
located in other record systems. Halpern v. FBI, 181 F.3d 279
(2d Cir. 1999), on which Mobley relies by analogy, is in
alignment with this court’s precedent. Id. at 288–89. By
contrast, Mobley’s demand that the FBI search certain record
systems is generally mere fiat. To the extent it is not, as noted,
the Argall declarations demonstrate the FBI conducted an
adequate search. In any event, under Mobley’s approach, which
would allow a requester to dictate, through search instructions,
the scope of an agency’s search, the reasonableness test for
search adequacy long adhered to in this circuit would be
20
undermined. Cf. DiBacco, 795 F.3d at 191 (citing SafeCard
Servs., 926 F.2d at 1201). Although an agency may not ignore
a request to search specific record systems when a request
reaches the agency before it has completed its search, cf.
Campbell, 164 F.3d at 28, a search is generally adequate where
the agency has sufficiently explained its search process and why
the specified record systems are not reasonably likely to contain
responsive records, see id. at 27–28; Oglesby, 920 F.2d at 68.
As noted, the FBI did just that.
Additionally, the FBI has no responsibility to pursue leads
that might be contained in documents released by other agencies
where it does not become aware of those documents until after
it has completed its search. See Campbell, 164 F.3d at 28;
Kowalczyk, 73 F.3d at 389. Mobley maintains that the redacted
e-mails released by the State Department, on the same day and
through the same counsel as the FBI release, demonstrate that
the FBI failed to pursue relevant leads in its search. But
Mobley provides no evidence that the FBI was aware of those
leads in the State Department e-mails before completing its
search. Because agencies are not required to perform additional
searches once their search is concluded, the court cannot
conclude that the FBI failed to conduct an adequate search.
Finally, the FBI’s search, under FOIA, “is not unreasonable
simply because it fails to produce all relevant material . . . .”
Meeropol v. Meese, 790 F.2d 942, 952–53 (D.C. Cir. 1986); see
also Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004);
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C.
Cir. 2003); Nation Magazine v. U.S. Customs Serv., 71 F.3d
885, 892 n.7 (D.C. Cir. 1995); SafeCard Servs., 926 F.2d at
1201. Over objections similar to Mobley’s, the court upheld
the adequacy of a search although it failed to discover an entire
category of records about a secret meeting that, according to the
requester, was “of such importance that records must have been
21
created.” DiBacco, 795 F.3d at 190; see also Oglesby, 920 F.2d
at 67 n.13. In the absence of any supporting evidence,
Mobley’s argument that files predating his arrest must have
existed also fails to raise a material question of fact regarding
the adequacy of the search.
B.
Waiver by official acknowledgment. Mobley contends
that the FBI and CIA waived their application of FOIA
Exemption 1 to certain information through official
acknowledgment of that exempt information. Exemption 1
shields from disclosure records that may be and are properly
classified, thus removing from FOIA’s scope “matters that are
. . . specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and . . . are in fact properly classified
pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). But
“when information has been ‘officially acknowledged,’ its
disclosure may be compelled even over an agency’s otherwise
valid exemption claim.” Fitzgibbon v. CIA, 911 F.2d 755, 765
(D.C. Cir. 1990). A three-part test determines whether an item
is “officially acknowledged”: (1) “the information requested
must be as specific as the information previously released”; (2)
“the information requested must match the information
previously disclosed”; and (3) “the information requested must
already have been made public through an official and
documented disclosure.” Id.
The plaintiff bears the burden of identifying specific
information that is already in the public domain due to official
disclosure. Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007);
Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).
Mobley has not carried that burden. First, Mobley points to a
document filed by a private party in a Yemeni court proceeding.
According to Mobley, the FBI had given the interview record to
22
the Yemeni government without any restrictions on its use, and
the Yemeni government, in turn, had provided it to the party
that filed it in court. Even assuming the truth of his claims, the
district court did not err in ruling there had been no official
acknowledgment of the document. Disclosure by one federal
agency does not waive another agency’s right to assert a FOIA
exemption. Frugone v. CIA, 169 F.3d 772, 774–75 (D.C. Cir.
1999). By parity of reasoning it follows that a foreign
government also cannot waive a federal agency’s right to assert
a FOIA exemption. It is more difficult still to understand how
disclosure by private litigants in a foreign court proceeding
could constitute official acknowledgment. That kind of
disclosure is no more “official” than the disclosure of
information by former CIA agents and officers acting with the
blessing of that agency’s pre-publication review process, and
this court has held the latter insufficiently official to trigger
waiver. Afshar, 702 F.2d at 1133–34.
Second, Mobley contends that an error in the CIA’s FOIA
office waived reliance on its Exemption 1 Glomar response. An
agency asserts a Glomar response when it refuses to confirm or
deny the very existence of responsive records. The name finds
its source in Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976),
which involved the CIA’s refusal to confirm or deny the
existence of documents pertaining to the Glomar Explorer, a
ship the U.S. government allegedly had deployed in an effort to
recover a sunken Soviet submarine. See Am. Civil Liberties
Union v. CIA, 710 F.3d 422, 426 n.1 (D.C. Cir. 2013). Here,
Mobley locates waiver in the first of two final response letters
he received from the CIA. A September 20, 2011, letter from
the CIA states that (1) the agency had located responsive
records but was withholding them in full based on two FOIA
and two Privacy Act exemptions, and (2) as to any records that
“reveal[ed] a classified connection to the CIA,” it was asserting
a Glomar response. On January 11, 2012, the CIA issued an
23
“amended final response” stating that (1) the September 20
letter “contained inaccuracies” as to the CIA’s search; (2) in
fact, its search turned up no “responsive records that might
reflect an open or otherwise acknowledged [CIA] affiliation”;
and (3) its Glomar response applied to “a classified connection
to the CIA.” Mobley maintains that the first CIA letter
constitutes official acknowledgment that the CIA possesses
records responsive to his FOIA request that reveal a classified
connection between him and the CIA. That, in Mobley’s view,
waived the Glomar response the CIA relied on in its second
letter.
A Glomar response is proper only if “the fact of the
existence or nonexistence of agency records falls within a FOIA
exemption,” Wolf, 473 F.3d at 374, and like other information
withheld pursuant to an exemption, an agency can waive a
Glomar response through official acknowledgment, id. at 378.
The Chief of the Public Information Programs Division at the
CIA stated in a sworn declaration that the September 20 letter
was “mistakenly issued” and “contained inaccuracies regarding
the results of the CIA’s search,” an “error” that the CIA did not
notice until after Mobley appealed the agency’s response. Decl.
Michele L. Meeks, Chief, Pub. Info. Programs Div., CIA,
¶¶ 21–22 (May 25, 2012); see also Supplemental Decl. Michele
L. Meeks, Chief, Pub. Info. Programs Div., CIA, ¶ 4 (Aug. 1,
2012). Mobley concedes that the CIA’s first letter was a
“mistake.” Appellant’s Br. 31. Mobley’s waiver argument
therefore fails on the third prong of the test in Fitzgibbon.
Although a FOIA response could satisfy that prong, a simple
clerical mistake in FOIA processing cannot. A contrary
conclusion would be inconsistent with the deference granted to
agency determinations in the national security context. See,
e.g., Wolf, 473 F.3d at 374; Krikorian v. Dep’t of State, 984
F.2d 461, 464 (D.C. Cir. 1993).
24
C.
Classification of documents. Mobley also takes issue with
the district court’s ruling that the FBI properly classified certain
responsive records after it received his FOIA request. The
problem, as he sees it, is that the official who classified those
records acted pursuant to an improper sub-delegation of post
hoc classification authority. The text of the sub-delegation
order indicates that the sub-delegation was permissible.
Executive Order 13,526, 75 Fed. Reg. 707 (Jan. 5, 2010)
(“the Order”), sets forth the executive branch’s classification
system and procedures. Section 1.7(d) of the Order governs the
classification or re-classification of previously undisclosed
information after it has become the subject of a FOIA request.
Classification in those circumstances is permissible “only if” (1)
the information meets the Order’s substantive requirements and
(2) classification “is accomplished on a document-by-document
basis with the personal participation or under the direction of
the agency head, the deputy agency head, or the senior agency
official designated under section 5.4 of this order.” Exec. Order
No. 13,526, § 1.7(d) (emphasis added), 75 Fed. Reg. at 711. At
all relevant times, the designated senior agency official within
the Justice Department was the Assistant Attorney General for
Administration. 28 C.F.R. § 17.11(a).
In 1999, the Assistant Attorney General for Administration
delegated his § 1.7(d) authority to the chief of the FBI’s
Document Classification Unit. Pursuant to that delegation, the
document-by-document review mandated by § 1.7(d) was
conducted twice in Mobley’s case, first by David M. Hardy, the
chief of the FBI’s Record/Information Dissemination Section —
the Document Classification Unit’s successor — and later, in
Hardy’s absence, by Argall, the acting section chief.
25
Sub-delegation to a subordinate federal official is
presumptively permissible, absent affirmative evidence in the
original delegation of a contrary intent. Cf. U.S. Telecom Ass’n
v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004). Under § 1.7(d) of
the Order, post hoc classification is permissible so long as a
designated official takes part in the decision at one of two levels
of involvement: The designated official must personally
participate in the classification decision, or the official deciding
to classify a document must act under the direction of the
designated official. The 1999 sub-delegation order opts for the
latter. It requires that the sub-delegee keep the Assistant
Attorney General for Administration “apprised in a timely
manner of any action taken under this authority.” Order,
Stephen R. Colgate, Assistant Att’y Gen. for Admin. (Dec. 29,
1999). The ongoing notification requirement qualifies the sub-
delegee’s classification decisions as made “under the direction”
of the Assistant Attorney General for Administration. Mobley
points to nothing in the record that suggests a failure to comply
with this requirement of the sub-delegation order.
IV.
The Privacy Act. Mobley also challenges two of the
district court’s Privacy Act rulings, one pertaining to the FBI
and the other to the CIA. Each challenge fails. The FBI’s
declarations satisfied the requirements of Doe v. FBI, 936 F.2d
1346 (D.C. Cir. 1991). The documents withheld by the CIA
were not housed in a “system of records” and therefore are
beyond the reach of the Privacy Act.
The Privacy Act, 5 U.S.C. § 552a, “safeguards the public
from unwarranted collection, maintenance, use and
dissemination of personal information contained in agency
records . . . by allowing an individual to participate in ensuring
26
that his records are accurate and properly used, and by imposing
responsibilities on federal agencies to maintain their records
accurately.” Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir.
1984). One of the ways the Privacy Act accomplishes this goal
is to require any agency that maintains a “system of records” to
provide information pertaining to a particular person to that
person when he or she asks to access it. 5 U.S.C. § 552a(d)(1).
A “system of records” is defined as “a group of any records
under the control of any agency from which information is
retrieved by the name of the individual or by some identifying
number, symbol, or other identifying particular assigned to the
individual.” Id. § 552a(a)(5). A “record” is “any item,
collection, or grouping of information about an individual that
is maintained by an agency, including, but not limited to, his
education, financial transactions, medical history, and criminal
or employment history and that contains his name, or the
identifying number, symbol, or other identifying particular
assigned to the individual, such as a finger or voice print or a
photograph.” Id. § 552a(a)(4).
“The Privacy Act — unlike [FOIA] — does not have
disclosure as its primary goal” and instead uses disclosure as a
tool to “allow individuals on whom information is being
compiled and retrieved the opportunity to review the
information and request that the agency correct any
inaccuracies.” Henke v. U.S. Dep’t of Commerce, 83 F.3d 1453,
1456–57 (D.C. Cir. 1996). Nevertheless, like FOIA, the Privacy
Act provides a cause of action to compel compliance with sub-
section (d)(1). 5 U.S.C. § 552a(g)(1)(B). Also like FOIA, the
Privacy Act carves out exemptions from disclosure when a
system of records meets certain criteria. Id. §§ 552a(j)–(k).
A.
Mobley contends that Privacy Act Exemption (j)(2) did not
justify the FBI’s decision to withhold certain responsive
27
documents. Exemption (j)(2) permits an agency head to
promulgate rules — subject to public notice and comment — to
exempt any of the agency’s systems of records from several of
the Privacy Act’s requirements, including disclosure under sub-
section (d)(1), so long as the system of records satisfies certain
criteria. Id. § 552a(j). The agency’s principal function must be
criminal law enforcement and the system of records must
consist of one of three types of information, as relevant here,
“information compiled for the purpose of criminal investigation,
including reports of informants and investigators, and associated
with an identifiable individual.” Id. § 552a(j)(2).
A Justice Department regulation, promulgated pursuant to
§§ 552a(j)–(k), exempts the FBI’s CRS from disclosure under
sub-section (d) of the Privacy Act. 28 C.F.R. § 16.96(a). A
particular record in the CRS is exempt, however, only if the FBI
demonstrates that the record is a law enforcement record within
the meaning of the Privacy Act. Doe, 936 F.2d at 1352–53.
According to Argall, the records at issue were “generated as a
result of interviews conducted during early 2010 with Sharif
Mobley while in Yemeni custody,” First Argall Decl. ¶ 31, and
“[t]hese records were compiled as a result of the FBI’s
legitimate law enforcement mission to ascertain the facts and
circumstances of the detention of a U.S. Citizen abroad,” id.
¶ 33; Second Argall Decl. ¶ 11.
Mobley disagrees with the FBI’s characterization of those
efforts and believes they are better described as consular or
diplomatic functions. But even had Mobley offered a basis for
the court to accept his characterization, and he does not,
Mobley erroneously assumes that a federal agency is capable of
acting in pursuit of only a single objective at a time. Agencies
may well — and surely often do — seek to advance a variety of
objectives through a single act. Here, for example, the FBI may
have wanted to “ascertain the facts and circumstances” of
28
Mobley’s detention in order to protect the interests of U.S.
citizens abroad and, at the same time, may have wanted to
“ascertain the facts and circumstances” of Mobley’s detention
in order to determine whether Mobley or another person had
violated federal criminal laws having extraterritorial effect, see
Second Argall Decl. ¶ 11. Mobley’s view might carry more
force if the interview records were compiled by an agency with
an express consular mission, but the declarations in the record
state that the interview records were compiled “as a result of the
FBI’s legitimate law enforcement mission,” and nothing in the
record casts doubt on these being FBI records. The FBI’s
declarations satisfy the requirements of Doe.
B.
Mobley also challenges the district court’s ruling that the
DIA’s Web Intelligence Search Engine or WISE (hereinafter,
“DIA database”) falls outside the reach of the Privacy Act
because it is not a “system of records.” In response to Mobley’s
FOIA and Privacy Act request, DIA referred to the CIA for
processing 41 records that came to the DIA from the Open
Source Center, which is managed by the CIA. The CIA
withheld six of these records as exempt under FOIA. The
government maintains that the 41 open source documents sent
to the CIA were not subject to the Privacy Act at all because
they were housed in the DIA database.
“A system of records exists only if the information
contained within the body of material is both retrievable by
personal identifier and actually retrieved by personal identifier.”
Maydak v. United States, 630 F.3d 166, 178 (D.C. Cir. 2010)
(quotation marks omitted) (emphasis in original). In
determining whether an agency maintains a system of records,
“the court should view the entirety of the situation, including
the agency’s function, the purpose for which the information
was gathered, and the agency’s actual retrieval practice and
29
policies.” Henke, 83 F.3d at 1461. A court may rely on a non-
conclusory agency declaration, absent evidence to the contrary.
McCready v. Nicholson, 465 F.3d 1, 13 (D.C. Cir. 2006).
The declaration describing the DIA database establishes
that it is not a “system of records,” 5 U.S.C. § 552a(a)(5). The
Chief of the FOIA Services Section of the DIA attests in a
sworn statement that the DIA database was “not part of a
Privacy Act system of records” because “DIA does not organize
records in [the DIA database] by individuals who may be
mentioned in those records, nor does DIA retrieve records about
individuals from that database by use of an individual’s name
or personal identifier as a matter of practice.” Decl. Alesia Y.
Williams, Chief, FOIA Servs. Section, DIA, ¶ 4 (Oct. 12, 2012).
The DIA database is “DIA’s repository for electronic message
traffic” to and from DIA, including open source media articles
sent it by other intelligence agencies. Id.
Mobley’s efforts to call this declaration into question rest
on insinuation and supposition. Chiefly, Mobley relies on his
attorney’s declaration that a DIA representative told him the
DIA database is a “search engine [that] returns data from a
multitude of sources based on a specific inquiry.” Decl. Kelly
McClanahan ¶ 6 (June 17, 2013). All databases are searched by
some kind of specific inquiry. That says nothing about whether
the DIA searches the database by personal identifier. Nor,
contrary to Mobley’s assertion, do the statements made to his
attorney undercut the good faith presumptively accorded
Williams’ declaration. Williams stated that the DIA database
consisted of e-mail traffic to and from other intelligence
agencies, which is consistent with what DIA told Mobley’s
lawyer — that the database is a search engine that draws “data
from a multitude of sources.” McClanahan Decl. ¶ 6.
Accordingly, the district court did not err in its application of
the Privacy Act.
30
V.
Finally, Mobley’s contention that the district court abused
its discretion when it twice declined to review in camera an FBI
document, which he claims was improperly classified, is
unpersuasive.
At its discretion, a district court “may examine the contents
of . . . agency records in camera . . . .” 5 U.S.C. § 552(a)(4)(B).
“If the agency’s affidavits provide specific information
sufficient to place the documents within the exemption
category, if this information is not contradicted in the record,
and if there is no evidence in the record of agency bad faith,
then summary judgment is appropriate without in camera
review of the documents.” Am. Civil Liberties Union v. U.S.
Dep’t of Defense, 628 F.3d 612, 626 (D.C. Cir. 2011) (internal
quotation marks omitted). When an agency meets its burden
through affidavits, “in camera review is neither necessary nor
appropriate,” and “[i]n camera inspection is particularly a last
resort in national security situations like this case.” Larson v.
Dep’t of State, 565 F.3d 857, 870 (D.C. Cir. 2009) (internal
quotation marks omitted). The court has stated that, in some
circumstances, district courts should conduct in camera review
of allegedly FOIA-exempt documents, as, for example, where
the affidavits are too conclusory to permit de novo review of the
agency exemption decision or where there is tangible evidence
of agency bad faith. Carter v. U.S. Dep’t of Commerce, 830
F.2d 388, 392–93 (D.C. Cir. 1987). Another factor that plays
into the calculus is the nature of the parties’ dispute, because “in
camera review is of little help when the dispute centers not on
the information contained in the documents but on the parties’
differing interpretations as to whether the exemption applies to
such information.” Id. at 393.
 31
Here, as our own review confirms, the district court, after
reviewing in camera the FBI’s classified declaration, acted
within its sound discretion when it decided that it did not need
to review the classified document in camera to conclude that the
FBI withheld it as properly classified. Mobley points to no
record evidence of bad faith. See id. at 392–93. Moreover, the
document implicates national security, Larson, 565 F.3d at 870,
and the parties’ dispute is over how to interpret the document —
whether it was properly classified, Carter, 830 F.2d at 393. To
the extent Mobley states in his reply brief that in camera review
would also reveal that the FBI had improperly withheld records
on the basis of FOIA Exemption 7(C), the court “need not
consider this argument because [Mobley] ha[s] forfeited it on
appeal, having raised it for the first time in [his] reply brief,”
Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir.
2008), and shown no extraordinary circumstances to excuse his
delay, Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23,
29 n.4 (D.C. Cir. 2008).
Accordingly, we affirm the orders granting summary
judgment in Mobley’s two cases and denying reconsideration.