Converting v. United States Department of Justice
401 U.S. App. D.C. 297
| D.C. Cir. | 2012Background
- After 9/11, Detroit Joint Terrorism Task Force investigated Nabil Al-Marabh and found Hannan, Ali-Haimoud, and Koubriti with false IDs; Convertino led the prosecution.
- The case evolved from fraudulent documents to a terrorism conspiracy trial; three of four defendants were convicted.
- In fall 2003, the U.S. Attorney removed Convertino for alleged ethical violations; convictions later vacated and retrial ordered for Koubriti.
- Convertino’s prosecutorial conduct sparked an OPR referral and a leak investigation by the OIG, source remains unidentified.
- In 2004 Convertino filed a Privacy Act suit; discovery spanned years, including subpoenas to the Detroit Free Press in 2007; reporter asserted Fifth Amendment privilege.
- By July 2010, DOJ moved for summary judgment; Convertino cross-moved for a Rule 56(f) stay to complete discovery; district court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of Rule 56(f) stay was an abuse of discretion | Convertino showed need for discovery and diligence | DOJ argued discovery would be futile and source is Fifth Amendment bound | Yes; the denial was an abuse of discretion and remanded for further proceedings |
| Whether additional discovery could produce evidence to support Privacy Act claim | Eastern District discovery could reveal the source identity | Discovery would be speculative and unlikely to create triable issue | Yes; district court abused discretion; remand for further discovery |
Key Cases Cited
- Paige v. Drug Enforcement Admin., 665 F.3d 1355 (D.C.Cir. 2012) (privacy act standard; state of mind required for willfulness may be inferred)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (S. Ct. 1986) (summary judgment standard; genuine issues of material fact)
- Berkeley v. Home Ins. Co., 68 F.3d 1409 (D.C.Cir. 1995) (Rule 56(f) motions construed generously)
- Resolution Trust Corp. v. N. Bridge Assocs., 22 F.3d 1198 (1st Cir. 1994) (grant of discovery in Rule 56(f) context; leeway for diligence)
- Messina v. Krakower, 439 F.3d 755 (D.C.Cir. 2006) (requires particularity and show discoverability of facts)
- Carpenter v. Fed. Nat'l Mortg. Ass'n, 174 F.3d 231 (D.C.Cir. 1999) (Rule 56(f) needs specificity and justification)
- In re City of El Paso, 887 F.2d 1103 (D.C.Cir. 1989) (availability of discovery subpoenas moot after case disposition)
- Green v. Nevers, 196 F.3d 627 (6th Cir. 1999) (discovery delays not due to movant’s fault in some contexts)
- Carney v. U.S. Dep’t of Justice, 19 F.3d 807 (2d Cir. 1994) (Rule 56(f)-like standard; speculation v. need for discovery)
- United States v. White, 322 U.S. 694 (S. Ct. 1944) (corporate privilege does not apply to Fifth Amendment privilege)