Thomas D. POWELL, Appellant, v. UNITED STATES BUREAU OF PRISONS, Appellee.
No. 89-5446.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 1, 1991. Decided March 15, 1991.
927 F.2d 1239
Where there is nothing at all suspicious about the legislative distinction, it would seem enough for courts to inquire simply into the rationality or reasonableness of the trade-off. We know we have strong interests on both sides of the balance (free speech on one side, and on the other whatever state interest enabled the restriction to survive First Amendment attack). Could reasonable legislators have found that there was marginally more need for the exempt speech, or that the interests favoring restriction were marginally less compelling? If so, and as always assuming the absence of any signs of legislative manipulation, neither First Amendment nor equal protection values seem to require more. Indeed, it would not be outlandish to read Austin as in substance finding no more than such a reasonable trade-off. See 110 S.Ct. at 1402; compare id. at 1414 (Scalia, J., dissenting); id. at 1425 (Kennedy, J., dissenting).
In any event, whatever the problems strict scrutiny may pose when applied to content-neutral distinctions in direct bans on speech, it surely poses more if extended to distinctions such as the present one—content-neutral distinctions (in effect, failures to restrict) in rules that are unrelated to the suppression of expression and that only incidentally affect First Amendment activity. Such an extension would mean strict scrutiny for all distinctions in any law subject to O‘Brien analysis, an extraordinary expansion of judicial power.
William H. Penniman, Washington, D.C. (appointed by the Court), for amicus curiae on behalf of appellant urging that there be a fully informed decision.
Michael L. Martinez, Asst. U.S. Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellee.
Before WALD, BUCKLEY and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Dissenting opinion filed by Circuit Judge SENTELLE.
WALD, Circuit Judge:
Thomas Powell appeals from a district court decision granting the Bureau of Prisons’ motion for summary judgment and adopting a magistrate‘s recommendation that Powell‘s Freedom of Information Act request for disclosure of the “Central Inmate Monitoring Manual” be denied. Events subsequent to the district court‘s decision cast doubt on that court‘s finding concerning the “segregability” of the requested document. Accordingly, we remand this matter to the district court for further consideration in light of these new developments.
I. BACKGROUND
The Bureau of Prisons (“Bureau“) maintains a “Central Inmate Monitoring” (“CIM“) program which establishes special procedures designed, in the words of a Bureau official, “to monitor and control the transfer, temporary release and community-based activities of certain inmates who present special concerns for management.” These inmates include persons who due to “their prior record, previous community oc
Powell subsequently filed suit pro se and in forma pauperis in the District Court for the District of Columbia, seeking review of the Bureau‘s decision. The matter was referred to a federal magistrate, who reviewed the Bureau‘s motion for summary judgment and filed a report and recommendation. Based on the Katsel Declaration, which addressed the function of the CIM program and the contents of the Manual, the magistrate concluded that the material was exempt under Exemption 2. More precisely, she found that the Manual passed the 2-prong test set forth in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981) (en banc), which asks (1) whether the document is “predominantly internal” and (2) whether disclosure would significantly risk circumvention of the law or agency regulations.
Powell then filed an objection to the magistrate‘s report, stating only that he “objects to the entire Report and Recomendation [sic] of the Magistrate and requests the District Judge to conduct a de novo review of the proceedings.” The district court noted that Powell‘s objection had not complied with Local Rule 504(b), which requires that “objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made,” and accordingly reviewed the magistrate‘s report only for clear error. Finding no such error, the district court issued an order adopting the Magistrate‘s recommendation.
Powell appealed, and this court subsequently appointed an amicus curiae to prepare briefs and to argue in support of Powell.1 Amicus brought to this court‘s attention the fact that the Bureau, in the context of another FOIA action, had in fact already released portions of the Manual. See Oliva v. Bureau of Prisons, No. 84 Civ. 5741 (JFK) (S.D.N.Y.1986), 1986 WL 2959. Upon notification of this fact, the Bureau disclosed most of these same portions of the Manual to Powell, the amicus, and this court.2
II. ANALYSIS
Powell first argues that the district court erred in employing a clear-error standard to review the magistrate‘s report and contends that the court should have reviewed that report de novo. The district court used a clear-error standard because it found that Powell had failed to comply with Local Rule 504(b),3 which requires that objections to magistrates’ reports be specifically stated. Although he acknowl-
The amicus emphasizes three conditions militating in favor of a de novo standard of review by the district court. First, he notes that the magistrate‘s report was brief (five pages) and focused on a single issue—the wholly exempt status of one 119-page document. Given the narrow focus of the report, he contends, the use of a general objection in no way undermines the purpose of the local rule in focusing the district court‘s attention on the core of the dispute. Moreover, the amicus reminds us, the pleadings of a pro se petitioner (here a prisoner at the time) are to be read with generosity. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Finally, the amicus maintains that Powell (like most FOIA requesters) operated at a disadvantage in filing his objection: he knew only what the affidavit said about the actual contents of the document and thus was in no position to offer anything more than the most general objections to the magistrate‘s report.
Powell‘s excuse has some appeal, but we need not decide at this time the merits of this claim (or even Powell‘s ultimate challenge to the magistrate‘s application of the Crooker test). Instead, because the release of portions of the Manual after the docketing of this appeal has called into serious question the adequacy of the magistrate‘s findings (as adopted by the district court) about the segregability of the Manual, we remand this case to the district court for further findings on that issue.
The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.”
The Katsel declaration is infirm in at least two ways. First, although in this action the Bureau contends that the entire Manual is exempt from FOIA disclosure, the Bureau has, in earlier litigation, “conceded that Chapter 2 [of the Manual] does not qualify for exemption from disclosure.” Oliva, 1986 WL at 2959. Moreover, as the subsequent release of substantial portions of the Manual demonstrates, some segregation of the Manual is “feasible“—contrary to the Bureau‘s blanket statement that it was not.6 In the light of this new evidence,
We recognize, of course, that this court is not required to consider evidence not contained in the record. See Goland v. Central Intelligence Agency, 607 F.2d 339, 370-71 (D.C.Cir.1978) (reh‘g), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). However, in this case, several unusual circumstances militate in favor of such consideration and ultimately in favor of a remand. First, the Oliva decision, citation of which prompted the Bureau to release portions of the Manual in this case, was only available through a computerized research service. This fact is particularly significant because the appellant was, until recently, a federal prisoner and a pro se litigant with limited access to legal materials. Second, although in many cases a party uncovering new evidence may seek relief in the district court pursuant to Fed.R.Civ.P. 60(b),8 such relief appears, in this case, to be time-barred. Indeed, the filing period for Rule 60(b) motions had run even before the Bureau released portions of the Manual (and thus cast doubt on its segregability claims). Finally, and most significantly, the Bureau‘s release of segregated portions of the document “go[es] to the heart of the contested issue“—namely, the segregability of the Manual.9 In re AOV Industries, Inc., 797 F.2d 1004, 1013 (D.C. Cir.1986). In sum, given the equities involved and the extraordinary circumstances presented in this case, “[w]e believe that a remand ... will best serve the interests of justice and fairness” and the purposes of the FOIA.10 Id.
Our dissenting colleague‘s reliance on Center for Auto Safety v. EPA, 731 F.2d 16 (D.C.Cir.1984), seems similarly misplaced. In that case, this court reviewed, under an abuse-of-discretion standard, a district court‘s decision not to undertake in camera review of the contested documents. Although Congress subsequently released some of the documents, this court refused to reverse the district court‘s decision and emphasized that Congress granted trial judges broad discretion in their use of in camera review. In so doing, the court noted that “[e]vidence that became available after the district court‘s decision can of course have no bearing upon whether that decision was an abuse of discretion.” Id. at 24 n. 9 (emphasis supplied). In this case we review not a trial court‘s exercise of discretion but rather its substantive determination of segregability, pursuant to the FOIA. Although a discretionary decision “must be made on the basis of the data then before the court,” id., the substantive soundness of a factual determination required by statute may, in certain circumstances, be called into question by subsequent events.
Moreover, in both Goland and Center for Auto Safety the “new evidence” was reconcilable with the district court‘s findings—that, in Goland, the CIA had conducted a thorough search, and that, in Center for Auto Safety, the trial court did not abuse its discretion. In this case, the intervening events directly contradict the Bureau‘s affidavit: if the Manual is not segregable, how did the Bureau segregate it?
It is so ordered.
SENTELLE, Circuit Judge, dissenting:
While I agree with the majority that the Bureau of Prison‘s recent release of chapters two and three of the CIM Manual is relevant to a factual evaluation of the veracity of the Katsel affidavit on which the magistrate‘s report relies, I believe that it is inappropriate for this Court to make such a factual determination. The majority appears to disregard the fact that appellate courts do not generally consider new evidence in reviewing a lower court‘s determination. The majority recognizes that determining the significance of the new evidence is “‘strictly within the province of the district court,‘” Maj.Op. at 1243 n. 7 (quoting In re AOV Industries, Inc., 797 F.2d 1004, 1013 (D.C.Cir.1986)), but then goes on to find, based on its own factual determination, that the new evidence in this case warrants a remand to the district court. See Maj.Op. at 1242.
It is true that this Court has previously remanded a case to the district court where equitable circumstances required that new evidence be taken into account. In In re AOV Industries, Inc., supra, a creditor objected to fees awarded to the law firm of a Chapter 11 debtor, arguing that the law firm had ineffectively represented the debtor‘s interests due to a conflict of interests. Between the time of the district court fee award and the appeal, time sheets had been discovered that reflected the “true scope of the overlapping representation.” Id. at 1012. Faced with this new information, this Court remanded the case to the district court for reconsideration of the fee award in light of these new time sheets. The Court noted that “[n]ormally, ... we are not required to consider evidence presented for the first time on appeal.” Id. (citation omitted). It also noted, however, that courts of appeal have limited discretion to make exceptions to that rule when “‘injustice might otherwise result.‘” Id. (quoting Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976)). The Court emphasized the numerous third party interests at stake in the proceeding, as well as the bankruptcy court‘s role as a court of equity. Id. at 1012-13. Given that the time sheets were critical to determination of the issue, the Court found that “it would be inconsistent with this court‘s own equitable obligations, and its supervisory role in reviewing other courts in equity, to pretend that they do not exist.” Id. at 1013. Accordingly, since district courts are the proper place for consideration of evidence, the Court remanded the case for the district court to reconsider the question of overlapping representation in light of the new evidence. Id.
In the present case, however, we lack the equitable context that required resolution in AOV Industries. Instead, we are dealing with a single individual‘s request for documents; one that has no effects on third parties, and that has statutory, rather than equitable, origins. Unlike the majority in this case, I believe the equitable context to be the critical factor in AOV Industries. It is not dispositive under AOV Industries that the new evidence in this case was arguably inconsistent with the BOP‘s original claim. This Court addressed that issue in Center for Auto Safety v. Environmental Protection Agency, 731 F.2d 16 (D.C.Cir.1984). In that case, the trial court granted summary judgment for the government on a FOIA claim, basing its decision
Evidence that became available after the district court‘s decision can of course have no bearing upon whether that decision was an abuse of discretion. The latter determination must be made on the basis of the data then before the court. The new material which appellant presses upon our attention is, therefore, irrelevant to the issues presented in this appeal.
731 F.2d at 24 n. 9. The Court went on to note in dicta that the appellants’ claims fell short of a sufficient showing of agency bad faith. However, the Court‘s decision to reject the appellants’ claims clearly rested on the inappropriateness of considering new evidence. Thus, contrary to the majority‘s characterization, it does not matter that the new evidence presented in this case may be “inconsistent” with the BOP‘s original claim, since it is simply irrelevant.
This Court reached a similar conclusion in Goland v. CIA, 607 F.2d 339 (D.C.Cir. 1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). Like AOV Industries and Center for Auto Safety, Goland dealt with the discovery of new materials between the time of the district court decision and the appeal. The district court in Goland granted summary judgment for the CIA on a FOIA claim, and this Court affirmed, finding that the CIA had made adequate efforts to locate documents responsive to the FOIA request. Following the district court decision and the filing of the appeal, but pending review, the CIA discovered hundreds of new documents that responded to the FOIA request. After the discovery, the CIA spent four weeks examining the documents, then, a week after the appellate opinion was released, informed the Justice Department of the existence of those documents. Id. at 367. The appellants argued that the discovery of new relevant documents impugned the integrity of the CIA affidavits on which the Court had relied to find that the CIA had made reasonable efforts to locate the requested documents. The Court noted that “[a]ppellate review is ordinarily unaffected by matters not contained in the record.” Id. at 370 (footnote omitted). The Court recognized that there are exceptions to this rule, including 1) an intervening change in the law; 2) changed circumstances that render the controversy moot; 3) changed circumstances that alter the appropriateness of injunctive relief; and 4) “in limited cases, facts which may be judicially noticed,” id. at 370 n. 7 (citing Landy v. FDIC, 486 F.2d 139, 150-51 (3d Cir.1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974) (taking notice of the changing circumstances of the litigation itself)). However, the Court found that the new documents fit within none of these exceptions: “The fact that additional documents exist, insofar as it is probative of the thoroughness vel non of the search, is rather plainly ‘newly discovered evidence.‘” Goland, 607 F.2d at 370. The Court noted that it had found no appellate or Supreme Court decisions vacating an opinion on newly discovered evidence, for the reason that “an appellate opinion is based on the record before it, and hence cannot be set aside on the basis of newly discovered facts outside the record.” Id. (footnote omitted).
If new evidence is discovered, the Court stated, the appropriate route for the parties would be to move for relief from the judgment of the district court under
Like the majority in this case, the Goland Court also addressed the adequacy of its holding if relief under Rule 60(b) were foreclosed. However, the Goland Court held that, even where Rule 60(b)‘s one-year limitation barred its application, it would be inappropriate for the Court to remand the case for the district court to consider the new evidence absent extraordinary circumstances. Although the Court found that it had fairly broad revisory power under
Here, as in Goland, the new evidence is simply “new evidence;” it does not fit within one of the four exceptions where such evidence warrants appellate consideration. Congress has established
Nor, in my view, does this case present such extraordinary circumstances as to warrant the necessary extension of the authority granted to this Court under
Having set aside the information outside of the trial record on which the majority bases its opinion, I find that the trial judge acted appropriately in reviewing the magis
In the present case, Powell made a general objection to the entire magistrate‘s report, stating simply that “[t]he plaintiff hereby objects to the entire Report and Recomendation [sic] of the Magistrate and requests the District Judge to conduct a de novo review of the proceedings.” The district court determined that this “omnibus objection” was insufficiently specific to trigger de novo review under
The Ninth Circuit has reached a different conclusion, holding that failure to file timely objections relieves the trial court only of the obligation to review de novo questions of fact, while “conclusions of law must still be reviewed de novo.” Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.1989) (citation omitted). In the Ninth Circuit, then, the trial judge would likely be required to conduct a de novo review in this case, as the determination whether a document falls within a FOIA exemption presents a mixed question of law and fact. Cf. Ferri v. Bell, 645 F.2d 1213, 1222 (3d Cir.1981).
While this Court has never directly addressed the issue, I find the view espoused by the majority of circuits—that a failure to object to an issue ends entitlement to de novo review of that issue—to be more persuasive. One of the leading cases in this area is Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982). There, the Fifth Circuit held that a failure to file written objections to proposed findings and recommendations in a magistrate‘s report barred the party from a de novo determination of the issues covered in the report, and from appealing factual findings except on grounds of plain error or manifest injustice. According to the Nettles court, the trial judge must make a de novo determination of those findings that are objected to, but is otherwise free to accept, reject, or modify the magistrate‘s report. The court emphasized that judicial efficiency mandated such a rule, even for pro se plaintiffs. According to the court,
It is reasonable to place upon the parties the duty to pinpoint those portions of the magistrate‘s report that the district court must specially consider. This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act.
Id. at 410 (citations omitted). See also Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980) (purpose of Magistrates Act is to relieve judge‘s workload; if party does not file objections, it is therefore not entitled to later review).
Thus, the Magistrates Act‘s concern with judicial efficiency indicates that the procedural requirements that attend the use of magistrates should be construed narrowly. Indeed, the Supreme Court has held that appellate courts are free to promulgate rules under which a failure to object to the magistrate‘s report may waive appellate
Thus, where Powell failed to make specific objections to the magistrate‘s report, it is appropriate for the trial judge to review the report under a clear-error, rather than a de novo, standard. The Third Circuit dealt with a case similar to the present one in Goney v. Clark, 749 F.2d 5 (3d Cir.1984). In that case, a pro se prisoner filed a § 1983 action against the prison warden. The case was tried by a magistrate and, instead of filing objections, the prisoner filed a “Motion for Notification of Appeal.” Id. at 6. The district court treated the motion as objections, and upheld the magistrate‘s decision based only on a review of the pleadings, documents and a summary of the testimony.
The Third Circuit held that the district court was not required to conduct de novo review of the magistrate‘s findings because the petitioner‘s objections were not specific; they stated only a general appeal alleging that the magistrate was biased, and objected to no specific portion of the report. Id. at 7. Relying on the fact that a party may waive review through an untimely filing, the court stated, “[w]e are satisfied that providing a complete de novo determination where only a general objection to the report is offered would undermine the efficiency the magistrate system was meant to contribute to the judicial process.” Id. at 7 (citing H.R.Rep. No. 1609, 94th Cong., 2d Sess. 4-8, reprinted in 1976 U.S.Code Cong. & Ad.News 6162, 6164-68). Thus, the court concluded that the prisoner‘s objections lacked the specificity necessary to trigger de novo review.
Similarly, in Mira v. Marshall, 806 F.2d 636 (6th Cir.1986), the Sixth Circuit held that de novo review was unnecessary where a pro se defendant made only general objections to the magistrate‘s report. The defendant‘s objections stated: “The undersigned objects to each and every finding of the Magistrate and requests that the court conduct a de novo review of the record.” Id. at 637 (citation omitted). The defendant objected specifically to three issues, and then stated, “Petitioner also objects to the other findings and recommendations of the Magistrate and requests that the court conduct a de novo review of the record.” Id. (citation omitted). Relying on Nettles‘s holding that “[f]rivolous, conclusive or general objections need not be considered by the district court,” the court held that de novo review was necessary only as to the three listed issues. Mira v. Marshall, 806 F.2d at 637-38, citing Nettles, 677 F.2d at 410 n. 8.
These cases indicate that the trial judge acted correctly in reviewing the magistrate‘s report under a clear-error standard. Here, the plaintiff made only a cursory objection to the magistrate‘s report. It is true that Powell was acting pro se in this case, an excuse for procedural inadequacy that the majority found had “some appeal.” Maj.Op. at 1242. However, as both Goney and Mira make clear, even pro se claimants are subject to procedural requirements, particularly where those requirements are established for reasons of judicial efficiency. Moreover, if Powell‘s situation were such that he were unable to meet
In light of the case law, I believe that we should find that the trial judge acted correctly in finding that Powell‘s superficial objections were insufficiently specific to trigger de novo review. Given that the magistrate‘s report relied on the then uncontradicted Katsel affidavit, I would also affirm the trial court‘s conclusion that the magistrate‘s report was not clearly erroneous.
Notes
Cf.Any party may file written objections to the magistrate‘s proposed findings and recommendations issued under paragraph (a) within ten days after being served with a copy thereof. The objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for the objection.
Id. at 738 (emphasis supplied).[I]t is now well established that summary judgment on the basis of such agency affidavits is warranted if the affidavits describe the documents and the justifications with reasonably specific detail, demonstrate that the information logically falls within the claimed exemption and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.
Fed.R.Civ.P. 60(b) (emphasis supplied).On motion and upon such terms as are just, the court may relieve a party... from a final judgment... for the following reasons ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial.... [Such] motion shall be made ... not more than one year after the judgment, order or proceeding was entered or taken.