UAF Opening Brief

8/3/2019 UAF Opening Brief

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ORAL ARGUMENT SCHEDULED - MARCH 2, 2012

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED AMERICA

FINANCIAL,

INCORPORATED,

Appellant.

v.

PATRICK R. DONAHOE,Postmaster General

U.S. Postal Service,

Appellee.

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App. No. 11 - 5111

Civil No.: 06 CV 1023 (JDB)

BRIEF OF APPELLANT

UNITED AMERICA FINANCIAL, INC.

William P. Farley, Esquire

Law Office of William P.

Farley, P.C.

717 D Street, N.W

Washington, D.C. 20004

John F. Karl, Jr.

McDonald & Karl

1150 Connecticut Ave., N.W.

Ninth floor

Washington, D.C. 20036!

Noah A. Clements*

THE CLEMENTS FIRM

1250 Connecticut Avenue NW,

Suite 200

Washington, DC 20036

(202) 630-0544

[email protected]

* Counsel of Record

! Counsel for Appellant UnitedAmerica Financial, Inc.

USCA Case #11-5111 Document #1346892 Filed: 12/09/2011 Page 1 of 45


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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED

CASES

Pursuant to Federal Rule of Appellate Procedure 28(a)(1)

and Circuit Rule 28(a)(1), counsel for Appellant United America

Financial, Inc. (United America) submit this certificate as to

parties, rulings and related cases.

a. Parties. Appellant is United America. Appelleeis Patrick R. Donahoe, Postmaster General of the

United States Postal Service.

b. Corporate Disclosure. Appellant UnitedAmerica is a privately held corporation. No

publicly held company owns more than 10% of

United Americas common stock.

c. Rulings Under Review. The district courtdenied United Americas Motion for Attorneys

Fees, published at United Am. Fin., Inc. v. Potter,

770 F.Supp.2d 252 (D.D.C. 2011).

d. Related Cases. This case has previously beenbefore the Court in docket number 10-5002.

There are no related cases.



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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED

CASES ............................................................................................... i!TABLE OF CONTENTS ................................................................ ii!TABLE OF AUTHORITIES ......................................................... iv!JURISDICTIONAL STATEMENT .............................................. 1!ISSUES PRESENTED ................................................................... 2!

1)! United America sought information related to an articlepublished by the United States Postal Service (USPS) that

called United America insurance agents Nigerian IdentityThieves. The parties agree that United America is eligible for

FOIA attorneys fees. In determining whether United America

was entitled to attorneys fees, the district court ignored the

strong public interest in uncovering illegal discrimination. Did

the district court err? ..................................................................... 2!2)! Although United America undoubtedly had a private interestin the possible discriminatory labeling of its salespeople, there

was no evidence that it sought the documents requested for anycommercial benefit. Did the district court err in failing to

consider United Americas lack of commercial interest in the

information? ................................................................................... 2!3)! The district court found the USPS justifications for manywithholdings through three rounds of briefing to be conclusory,

untenable, and non-sensical. Nevertheless the district court

found that the USPS had articulated a reasonable legal

position in denying attorneys fees. Did the district court err? .. 2!STATEMENT OF THE CASE ....................................................... 3!STATEMENT OF FACTS .............................................................. 6!SUMMARY OF THE ARGUMENT ............................................ 12!



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ARGUMENT .................................................................................. 15 !I.! Standard Of Review. .............................................................. 15!II.! The District Court Erred By Failing To Consider The StrongPublic Interest In Uncovering Governmental DiscriminationBased On Race Or National Origin. ........................................... 16!III.!The District Court Erred By Failing To Consider ThatUnited America Sought No Commercial Benefit From The

Information Requested. ............................................................... 22!IV.!The District Court Erred By Failing To Hold The USPS ToIts Burden Of Showing That Its FOIA Denials Had A

Reasonable Basis In Law. ........................................................... 25!A.! Simply Stating The Correct Legal Standard WithoutShowing The Standard Is Applicable Does Not Constitute A

Reasonable Basis In Law. ........................................................ 27!B.! The USPS Did Not Meet Its Burden To Justify ItsWithholding of Documents Voluntarily Disclosed. .............. 32!

CONCLUSION .............................................................................. 37!CERTIFICATE OF WORD COUNT .......................................... 39!CERTIFICATE OF SERVICE .................................................... 39!



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TABLE OF AUTHORITIES

Cases!Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978) .............. 17

* Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521 (D.C. Cir.

2011) ....................................................................................... 15, 35

Burka v. U.S. Dept. of Health & Human Servs., 142 F.3d 1286

(D.C. Cir. 1998) ............................................................................ 13

* Cazalas v. Dept of Justice, 709 F.2d 1051 (5th Cir. 1983) ... 18, 24

Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977) ................ 13, 36

* Davy v. CIA, 550 F.3d 1155 (D.C. Cir 2008) ....... 21, 34, 35, 37, 38

Fenster v. Brown, 617 F.2d 740 (D.C. Cir. 1979) ........................... 17

Fullilove v. Klutznick, 448 U.S. 448 (1980) ............................. 19, 21

Herbert v. Natl Acad. of Sci., 974 F. 2d 192 (D.C. Cir. 1992) ....... 16

Judicial Watch, Inc. v. Bureau of Land Mgmt., 562 F. Supp. 2d

159 (D.D.C. 2008). ........................................................................ 31

Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006) ......... 32

Kickapoo Tribe v. Babbitt, 43 F.3d 1491 (D.C. Cir. 1995)....... 15, 16

Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704(D.C. Cir. 1977). .................................................................... 13, 37

Tax Analysts v. Dept of Justice, 965 F.2d 1155 (D.C. Cir. 1992) 23,

24

Tax Analysts v. IRS, 294 F.3d 71 (D.C. Cir. 2002) ........................ 29

United Am. Fin., Inc. v. Potter, 531 F. Supp. 2d 29 (D.D.C. 2008) 4,

16, 28, 34

United Am. Fin., Inc. v. Potter, 667 F. Supp. 2d 49 (D.D.C. 2009) 5,

16, 30, 31

United Am. Fin., Inc. v. Potter, 770 F. Supp. 2d 252 (D.D.C. 2011)

.................................................................... 3, 20, 23, 26, 30, 32, 33

Authorities upon which we chiefly rely are marked with asterisks.



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United Assn of Journeymen and Apprentices v. Army Corps of

Engrs, 841 F.2d 1459 (9th Cir. 1988) ......................................... 18

Vermont Low Income Advocacy Council v. Usery, 546 F.2d 509 (2d

Cir. 1976) ...................................................................................... 37

Statutes!28 U.S.C. 1291. ............................................................................... 1

Freedom of Information Act (FOIA), 5 U.S.C. 552 .................... 1



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JURISDICTIONAL STATEMENT

This Court has jurisdiction over this appeal of the district

courts final order denying FOIA attorney fees under 28 U.S.C.

1291. The district court had jurisdiction over the underlying

action under the Freedom of Information Act (FOIA), 5 U.S.C.

552. The district court likewise had jurisdiction over United

Americas request for FOIA attorney fees under 5 U.S.C.

552(a)(4)(E). The district court issued its decision denying FOIA

attorney fees on March 18, 2011, and United America filed its

timely Notice of Appeal on May 6, 2011 pursuant to Fed. R. App.

P. 4(a)(1)(B).



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ISSUES PRESENTED

1)United America sought information related to an articlepublished by the United States Postal Service (USPS) that

called United America insurance agents Nigerian Identity

Thieves. The parties agree that United America is eligible

for FOIA attorneys fees. In determining whether United

America was entitled to attorneys fees, the district court

ignored the strong public interest in uncovering illegal

discrimination. Did the district court err?

2)Although United America undoubtedly had a privateinterest in the possible discriminatory labeling of its

salespeople, there was no evidence that it sought the

documents requested for any commercial benefit. Did the

district court err in failing to consider United Americas lack

of commercial interest in the information?

3)The district court found the USPS justifications for manywithholdings through three rounds of briefing to be

conclusory, untenable, and non-sensical. Nevertheless

the district court found that the USPS had articulated a

reasonable legal position in denying attorneys fees. Did the

district court err?



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STATEMENT OF THE CASE

This case is before the Court on an appeal of the district

courts denial of FOIA attorneys fees.1

Appellant United America

Financial, Inc. (United America) filed a complaint under the

Freedom of Information Act (FOIA) against United States Postal

Service (USPS) then-Postmaster General John Potter on June 2,

2006.2 The USPS answered on August 9, 2006.

After United America filed its first motion for summary

judgment, the USPS released an additional 47 redacted pages of

documents on October 30, 2006 while it prepared its own motion

for summary judgment.3 After both parties filed motions for

summary judgment, the district court granted the USPS motion

with respect to a few documents, granted the United America

motion for some others. The district court denied the USPS motion

1United Am. Fin., Inc. v. Potter, 770 F. Supp. 2d 252 (D.D.C. 2011)

(Attorney Fees Opinion), JA 105; March 18, 2011 Order, JA109.

2 Complaint (June 2, 2006), JA 12.

3 Decl. of Mildred R. Baxter, USPS Inspection Service, at 14 (Oct.

30, 2006), JA __.



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without prejudice for the bulk of the withheld documents. 4 The

district court ordered further briefing to provide defendant a

chance to submit more detailed declarations in support of the

withholdings under Exemption 7(A) 5 and to provide defendant a

further opportunity to submit more detailed declarations

justifying the withholding of the names under Exemptions 6 and

7(C).6 The district court had found many of the USPS

justifications to be conclusory.7 The district court instructed the

USPS to be mindful of the standards applicable in this Circuit8

and expressed some skepticism as to whether the USPS could

justify its withholding of the names of USPS employees involved

in responding to the allegations of identity theft.9


(First FOIA Opinion), JA 127.

5Id. at 40, JA 130.

6Id. at 47, JA 135.

7Id. at 38-39, 41, 44, 47.

8Id. at 40.

9Id. at 47.



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After the USPS and United America filed their second

motions for summary judgment, the USPS delivered 200

additional pages of information to United America on June 10,

2008.10 Because the district court found it difficult, if not

impossible, to discern from the parties submissions precisely what

documents, or portions of documents, remain[ed] at issue, based

on what exemption claims, the district court dismissed both

parties second motions for summary judgment without prejudice.

The court ordered the parties to brief a narrowed case focusing on

the documents which remained at issue.11

The parties then filed their third cross motions for summary

judgment regarding the 17 remaining documents at issue. The

district court ordered the release of ten of these remaining

documents.12 The district court found that the USPS justifications

for withholding the names of postal investigators under

10 Order of March 9, 2009 at 3, JA 125.

11Id. at 3-4, JA 125-26.


(Second FOIA Opinion), JA 110; Attorney Fees Opinion, 770 F.

Supp. 2d at 254, JA 105.



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Exemption 7(C) to be far too conclusory to support a finding that

these employees have a privacy interest.13 With regard to the

names of the editorial staff involved in creating the offensive

article, the court likewise stated that the USPS has not offered

anything more than conclusory statements as to why this

information should not be public.14

United America thereafter filed a motion for attorneys fees,

which the district court denied on March 18, 2011.15 United

America appeals this denial.

STATEMENT OF FACTS

United America, one of the few minority-owned insurance

companies in the nation,16 provides financial services to more than

13 Second FOIA Opinion,667 F. Supp. 2d at 60, JA 115; see also id.

at 63-65, JA 117-120.

14Id. at 62.

15 Attorney Fees Opinion, JA 105.

16See Independent Agency Population Holds Steady as Start-ups

Keep Pace with Mergers, INS.J.(Dec. 20, 2010),

http://www.insurancejournal.com/magazines/features/2010/12/2

0/160587.htm; Kevin B. OReilly, Minority & Women Agents

Look to Tap Emerging Markets, INS.J.(June 23, 2003),

http://www.insurancejournal.com/magazines/features/2003/06/2

3/30101.htm.



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25,000 federal employees. Although many United America

employees are of African descent, most were born in the United

States or are otherwise U.S. citizens. After receiving complaints of

aggressive sales tactics on USPS property by some of United

Americas insurance salespeople, the USPS published an article on

its website warning its employees not to do business with United

America, labeling United America agents Nigerian identity

thieves.17 The article did not limit its characterization to

particular salespeople or state how the USPS had made this

determination.

When it discovered the USPS web article, United America

requested documents from the USPS and the USPS Inspection

Service related to the creation of this article and any

investigations related to it.18 In its first response, the USPS

Inspection Service claimed that there was no investigation of

United America and that its personnel were not involved in

17 USPS News Link,A Dropped PIN: Nigerian Identity Thieves

Target USPS Employees, Jan. 27, 2006 (Article), JA 146.

18 FOIA Request Letter of William P. Farley (Feb. 1, 2006), JA

143.



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creation of the article.19 United America responded to the

Inspection Service FOIA technician that inspectors in Cleveland,

Ohio likely had some of the information requested and provided

the names of several USPS employees to contact.20 Shortly

thereafter, the USPS Compensation Division replied, stating that

it had found eleven pages of responsive records.21 At that time, the

USPS released six pages, one with significant redactions, and

withheld five pages in their entirety.22

That same day, United America appealed the USPSs

decision not to search for documents, interview their employees

and provide the documents to [United America] as is required

under the FOIA.23

United America explained that it was aware

that the documents obviously exist, including emails and

19 FOIA Response Letter of M. R. Baxter, USPS Inspection

Service, to William P. Farley (March 9, 2006), JA 192.

20 Letter of William P. Farley to M. R. Baxter, USPS Inspection

Service (March 15, 2006), JA 158.

21 FOIA Response Letter of Julie S. Moore to William P. Farley(March 22, 2006), JA 194.

22Id.

23 FOIA Appeal Letter of William P. Farley to Anthony Alvano at 4

(March 22, 2006), JA 166.



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supporting letters.24 United America sent a more detailed appeals

letter two days later, including an appeal of the redactions and

withheld documents.25

This appeal was denied on April 6, 2006.26

Among the reasons stated for non-disclosure, the USPS stated

that disclosure of internal communications regarding a suspected

identity theft scam would not be a good business practice, and

was therefore covered under Exemption 3(B) and 39 U.S.C.

410(c)(2).27

United Americas FOIA request was forwarded to the USPS

Office of the Inspector General (OIG), which stated that there

was in fact an on-going investigation.28 The OIG denied the FOIA

request, however, claiming that the records were exempt from

24Id. at 2, JA 164.

25 Second FOIA Appeal Letter of William P. Farley to Anthony

Alvano (March 24, 2006), JA 168.

26 FOIA Appeal Denial Letter of Anthony Alvano to William P.Farley (April 6, 2006), JA 202.

27Id. at 3, JA 204.

28 FOIA Response Letter of Betsy Cuthbertson, USPS OIG, to

William P. Farley (March 27, 2006), JA 201.



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disclosure under 5 U.S.C. 552(b)(7)(A).29 The OIG provided no

factual detail to show how it believed the release of requested

information could reasonably be expected to interfere with

enforcement proceedings.30

United Americas appeals were also forwarded to the USPS

Inspection Service, which stated that it had found 132 pages

responsive to United Americas FOIA request.31 The Inspection

Service released five of these pages with redactions, but withheld

the remainder under FOIA exemptions 2, 5, 6, 7(C), 7(D), and

7(E).32 There was no justification provided for these exemptions.

United America appealed these withholdings on April 12,

2006.33

United America explained that disclosure of the

information would shed light on the Postal Services performance

29Id.

30Id.

31 FOIA Response Letter of T. A. Warner, USPS InspectionService, to William P. Farley (April 6, 2006), JA 207.

32Id.

33 Third FOIA Appeal Letter of William P. Farley to Anthony

Alvano (April 12, 2006), JA 175.



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of its duties and let citizens know what the government is up to.34

United America again asked that all documents supporting the

[USPS] statement on [its] website that [United America] is

composed of Nigerian identity thieves be provided immediately.

Id.

The USPS denied this last administrative appeal on May 2,

2006.35 This denial provided only general legal explanations of the

exemptions claimed, without any specific justifications for

applying these exemptions to the documents withheld. Id. The

OIG sent a separate appeal denial letter on May 8, 2006, stating

there was an on-going investigation and Exemption 7(A) therefore

exempted all the documents in its possession.36

Documents

subsequently released by the OIG have shown that this statement

was false: the OIG investigation was dropped on May 4, 2006.37

34Id. at 2, JA 176.

35 Second FOIA Appeal Denial Letter of Anthony Alvano to

William P. Farley (May 2, 2006), JA 215.

36 FOIA Appeal Denial Letter of Gladis C. Griffith, USPS OIG, to

William P. Farley (May 8, 2006), JA 221.

37 USPS OIG Report, Exhibit 4 to USPS Third Mot. For Summ. J,

R. 42-5, JA 224.



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United America then filed suit in district court, seeking to

uncover the extent of the USPS discrimination against people of

African origin.38

SUMMARY OF THE ARGUMENT

The Freedom of Information Act (FOIA) allows a district

court to assess against the United States reasonable attorney fees

and other litigation costs reasonably incurred in any case under

this section in which the complainant has substantially prevailed.

5 U.S.C. 552(a)(4)(E). This Court has imposed additional

entitlement criteria, gleaned from the conference report as part

of the unenacted Senate version of the bill: 39

(1)the benefit to the public, if any, derived from the case;(2)the commercial benefit to the complainant;

38 Complaint (June 2, 2006), JA 12.

39 There has been some discussion in this Court as to the propriety

of imposing these criteria, which were weeded out of theoriginal Senate version of FOIA where they would have had

the binding force of law and transplanted to the conference

report where they do not.Burka v. U.S. Dept. of Health &

Human Servs., 142 F.3d 1286, 1293 (D.C. Cir. 1998) (Randolph,

J., concurring).



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(3)the nature of the complainants interest in the recordssought; and

(4)whether the governments withholding of the records hada reasonable basis in law.40

This Court has also urged consideration of whether the

prosecution of the plaintiff's action could reasonably have been

regarded as necessary in determining whether to award attorney

fees.41

In this case, there was no question that United America was

eligible for attorneys fees, having substantially prevailed in the

FOIA litigation and forcing the release of 237 pages of information

previously withheld.42 However, the district court found that

United America was not entitled to attorneys fees under the four-

factor test this Court has adopted for application of 5 U.S.C.

552(a)(4)(E).

40Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C. Cir. 1977).

41Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704,

714 (D.C. Cir. 1977).

42See Def. Oppn to Mot. for Atty Fees at 2 (USPS does not argue

that [United America] fails to meet the eligibility requirement

for attorneys fees and costs.), Docket R. 65.



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The district courts findings were rooted in legal error. First,

the district court failed to consider the public interest in

uncovering possible racial discrimination and bias against people

of African origin on the part of its public officials, instead

imposing its own beliefs on how many people would be interested

and making a post-hoc determination of how many documents

were ordered released. The district court also erred in failing to

consider that United America sought no commercial benefit from

the information requested. Furthermore, the district court erred

in finding that the government had a reasonable basis in law. In

its view, the reasonable basis standard was met as long as the

government stated the correct legal standard for a claimed FOIA

exception, regardless of whether the government made the

showing required to make that standard applicable, and

notwithstanding the fact that the USPS forced United America to

litigate for over four years to gain access to information to which it

was entitled under FOIA. These errors of law support reversal.



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ARGUMENT

I. Standard Of Review.This Court reviews a district courts denial of attorneys fees

under FOIA for abuse of discretion.43 A district court abuses its

discretion if it did not apply the correct legal standard or if it

misapprehended the underlying substantive law.44 This Court

has further explained that it must consider whether the district

court failed to consider a relevant factor, whether [it] relied on an

improper factor, and whether the reasons given reasonably

support the conclusion.45 This Court reviews all questions of law

de novo.46

43Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 524 (D.C.

Cir. 2011).

44Id. (quotingKickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C.Cir. 1995)).

45Kickapoo Tribe, 43 F.3d at 1497 (internal quotation omitted).

46Herbert v. Natl Acad. of Sci., 974 F. 2d 192, 197 (D.C. Cir.

1992).



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II. The District Court Erred By Failing To Consider TheStrong Public Interest In Uncovering Governmental

Discrimination Based On Race Or National Origin.

In considering the public interest factor for entitlement to

FOIA attorney fees, the district court focused on what it

considered to be the limited number of documents it ordered

disclosed47 and the capability of United America to disseminate

the information disclosed48 to the exclusion of virtually any other

issue that might weigh on the public interest. The district courts

failure to consider the strong public interest in rooting out

possible illegal discrimination based on race and national origin

reflects an erroneously constrained view of the public interest.

47 In fact, hundreds of pages of documents were released as a

result of this FOIA litigation. SeeUnited Am. Fin., Inc. v. Potter,

531 F. Supp. 2d 29, 36 (D.D.C. 2008) (First FOIA Opinion)

(Defendant has disclosed roughly 50 pages in full or redacted

form.) ; United Am. Fin., Inc. v. Potter, 667 F. Supp. 2d 49, 53

(D.D.C. 2009) (Second FOIA Opinion) (The USPS invoked

several FOIA exemptions to withhold hundreds of pages of

documents in whole or in part but subsequently reevaluatedthose decisions and made additional disclosures.).

48 The district court ignored the fact that as a result of this

litigation, the USPS made the released documents publicly

available on the courts own website, where anyone with an

interest in governmental practices can find them.



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While the public interest criterion is concerned with whether

the release of information is likely to add to the fund of

information that citizens may use in making vital political

choices,49 a concern for which the plaintiffs ability to disseminate

information is relevant, that is not the only public interest

involved. There is also a strong public interest in uncovering

possible racial and national origin discrimination on the part of

public officials.

Courts have held that [a] strong public interest is served

where, as here, the underlying purpose of disclosure is the

enforcement of federal laws embodying important congressional

policies.50

An attempt to determine whether government officials

are illegally discriminating against individuals on the basis of race

or national origin serves that strong public interest. Surely it is

in the public interest to discover, if true, that the [government] is

49Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979)

(quoting Blue v. Bureau of Prisons, 570 F.2d 529, 534 (5th Cir.

1978)).

50United Assn of Journeymen and Apprentices v. Army Corps of

Engrs, 841 F.2d 1459, 1461 (9th Cir. 1988).



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less than entirely just in its dealings.51 For example, the court in

Cazalas held that the request of documents to determine whether

DOJ engaged in a conspiracy to propagate a policy of sex

discrimination by high public officials was in the public interest.

Id. Similarly, United Americas request to determine whether

government agents are engaging in racial or ethnic discrimination

is likewise in the public interest.

Unlike in days past, government agents rarely practice

racial and ethnic discrimination openly. But such discrimination

persists. While the popular attention seems to have turned

elsewhere, the public interest is still served by rooting

discrimination out like a straggler weed, in order that it does not

multiply and strangle the garden. The time cannot come too soon

when no governmental decision will be based upon immutable

characteristics of pigmentation or origin.52

Inexplicably, the USPS defended its discrimination as

merely descriptive language. Def. Oppn to Mot. for Atty Fees at

51Cazalas v. Dept of Justice, 709 F.2d 1051, 1053 (5th Cir. 1983).

52Fullilove v. Klutznick, 448 U.S. 448, 516 (1980).



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15 (This is, at the very least, an impermissible leap from the use

of descriptive language to discrimination based on race and

national origin.). In this case, the offensive language speaks for

itself. It presupposes that financial services salespeople of African

origin are inherently suspect, and are in fact Nigerian identity

thieves. This Court should not condone such use of offensive

descriptive language rooted in prejudice.

In this case, the district court failed to consider the public

interest in rooting out discrimination, but denied the motion for

attorney fees based on its determination that there is little

evidence that there is a large interested group or even that

plaintiff is able to disseminate the disclosed information to the

allegedly interested public.53 The public interest in uncovering

and publicizing illegal discrimination is not so limited; the district

court articulated a legal standard that states if there is no

widespread outcry over government discrimination against a

small-enough disfavored minority, then there is no public interest

53 Attorney Fees Opinion, 770 F. Supp. 2d at 256, JA 107.



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served by uncovering that discrimination. Such a conclusion

cannot be a correct statement of the law.

The fact that today there are relatively few people of

Nigerian or other African origin in financial services does not

mean that people of African origin would not want such business

in a more race-blind society. [I]n our quest to achieve a society

free from racial classification, we cannot ignore the claims of those

who still suffer from the effects of identifiable discrimination.54

The principles behind the district courts decision would

greatly impede ordinary citizens from asserting their rights to

request government information. As long as the FOIA requesters

are not media or academic entities, the district courts flawed rule

would deny attorney fees if the requesters cannot widely

disseminate the information ultimately received. Indeed, the only

kinds of FOIA requesters who can prove that they almost

immediately circulate the information they obtain belong to the

group that is in the business of profiting from the information

54Fullilove, 448 U.S. at 516.



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when it winds up in their newspapers and magazines and TV

shows.55

This position relies on a post-hoc inquiry into whether the

information sought grabbed the publics attention after its release.

As recognized by Judge Tatel in responding to the dissent inDavy

v. CIA, the district court's decision:

would force requesters to bear the risk that the

revealed documents might ultimately be boring,but since no one in [United Americas] position

can know before suing what the requested

documents say or even whether they exist, the

[district courts] rule would in fact chill all FOIA

suits, preventing the discovery of important and

unimportant content alike. So long as the

information sought was of a type the public

might want to know, we should consider the

objective underlying this element of our testmet.56

This Court should resist the attempts by the USPS and the

district court to narrow the applicability of the public interest

factor to media, academics and others who have their own

55Davy v. CIA, 550 F.3d 1155, 1165 (D.C. Cir 2008) (Tatel, J.,

concurring) (quoting id. at 1166 n.1).

56Id. at 1164.



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sufficient private interests and resources to seek information from

the government.

In this case, the request sought documents regarding the

USPSs published assertion that United America employees were

Nigerian identity thieves and why the USPS stated the African

origin of such employees was relevant to an accusation of identity

theft. The release of this information was in the public interest.

The district courts refusal to properly consider this public interest

was legal error.

III. The District Court Erred By Failing To Consider ThatUnited America Sought No Commercial Benefit From

The Information Requested.

The district court relied on this Courts statements that the

second and third eligibility criteria, the commercial benefit to the

complainant and the nature of the complainants interest in the

records sought, are closely related and often considered together

to ignore the fact that there has been no showing or finding that

United America sought any commercial benefit in requesting the



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information.57 While there is no question that United America did

have a private interest as well as a public-minded interest in the

documents, since its salespeople were the onesdiscriminatedagainst, it has disclaimed any intent to seek monetary benefit

from the information. A requester's strong personal interest in

securing the documents is not inconsistent with a broader public

interest.58

In Tax Analysts v. Dept of Justice, the requesters sought a

direct financial benefit from obtaining the document requested

even though its interest may not have been strictly

commercial.59 Tax Analysts was in the business of publishing tax

decisions to its customers.60

The commercial benefit envisioned by

this factor is [c]ommercial profit pursued by a business firm

57 Attorney Fees Opinion, 770 F. Supp. 2d at 257, JA 107 (quoting

Tax Analysts v. Dept of Justice, 965 F.2d 1155, 1095 (D.C. Cir.

1992) (Tax Analysts I)).

58Cazalas, 709 F.2d at 1054.

59Tax Analysts I, 965 F.2d at 1095.

60Id. at 1094.



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seeking trade information.61 Unlike in Tax Analysts I, United

Americas private interest is not aligned with a financial incentive

in seeking information from the government.

As with the district courts constrained view of the public

interest, shortcutting any inquiry into the second criterion for

attorney fee entitlement serves to hamper the efforts of thoseCongress sought to protect. As Senator Strom Thurmond stated at

hearings on the 1974 FOIA amendments regarding the proposed

second criterion:

We must insure that the average citizen can

take advantage of the law to the same extent as

the giant corporations with large legal staffs.

Often the average citizen has foregone the legal

remedies supplied by the Act because he has hadneither the financial nor legal resources to

pursue litigation when his Administrative

remedies have been exhausted.62

61Cazalas, 709 F.2d at 1054; Fenster v. Brown, 617 F.2d 740, 743-

44 (D.C. Cir. 1979).

62 S.Rep. No. 93-854, at 18 (quoting 1 Senate Hrgs on Exec.Privilege, Secrecy in Govt and Freedom of Info. Before the

Subcomm. on Inter-Govtl Relations of the Senate Comm. on

Govt Ops. & the Subcomm. on Admin. Practice & Proc. of the

Senate Comm. on the Judiciary, 93d Cong., at 174 (1973)),

quoted in Sampson, 559 F.2d at 712.



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United America is a small, minority-owned business. There

has been no argument that it is one of the giant corporations not

entitled to attorney fees. Rather United America is precisely the

type of small company with limited resources which Congress

tried to ensure would not be dissuaded from asserting its FOIA

rights when the USPS tried to bury United America in costly

litigation.

IV. The District Court Erred By Failing To Hold TheUSPS To Its Burden Of Showing That Its FOIA Denials

Had A Reasonable Basis In Law.

In denying United Americas motion for attorney fees under

FOIA, the district court found that the USPS had a reasonable

basis for refusing the information requested because it was not

recalcitrant or obdurate and made a claim based on sound legal

theory for withholding certain information under exemption 7(C)

even though it failed to make the required showing of harm.63

The USPS had initially withheld documents under exemptions 2,

5, 6, 7 (A), (B), (D), and (E) as well, and had voluntarily released

200 pages of documents after the second round of summary




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26

judgment motions. The district court failed to consider whether

the USPS had a reasonable basis for withholding these

documents.

The district court has set out a template for risk-free

resistance to FOIA requests by small companies and individuals.

As long as the government agencies are not recalcitrant or

obdurate64 in their conduct of litigation and cite the correct law,

the government would not have to pay attorney fees, regardless of

whether there were valid grounds for withholding the information.

This standard encourages government agencies to stubbornly

resist valid FOIA requests in the hopes of outlasting small entities

and individuals in FOIA litigation and holds them harmless when

they fail to comply with FOIA by offering conclusory justifications.

The district court erred in finding that the government had a

reasonable basis in law as long as it stated the correct legal

standard for a claimed FOIA exception regardless of whether the

64 Recalcitrant is commonly defined as obstinately defiant of

authority or difficult or impossible to handle. Webster's Third

New Intl Dictionary. Obdurate is commonly defined as

stubbornly persistent in wrongdoing or unyielding. Id.



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government made the evidentiary showing required. Furthermore,

the district court erred by holding that as long as the USPS was

not recalcitrant or obdurate in forcing United America to litigate

for almost four years to gain access to information to which it was

entitled under FOIA, attorney fees would not be available.

A. Simply Stating The Correct Legal StandardWithout Showing The Standard Is Applicable

Does Not Constitute A Reasonable Basis In Law.

This Court need look no further than the district courts own

words to see that the USPS did not have a reasonable basis for

withholding the documents sought. In its first summary judgment

opinion, the district court used the word conclusory no fewer

than 12 times in denying USPS claims for exemption.65 The

district court also held that the reason proffered by the USPS to

withhold investigation documents under Exemption 7(A) makes

no sense.66 Furthermore, the district court held that the

governments position that mere involvement of the Inspection

Service serves to make information sought exempt under 7(C) is

65See First FOIA Opinion, 531 F. Supp. 2d at 38-39, 41, 44, 47.

66Id. at 39, JA 129.



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an untenable reading of Exemption 7(C), for it would mean that

any time there was an investigation conducted by one unit of an

agency, all agency records touching on the subject matter of the

investigation may be deemed compiled for law enforcement

purposes.67

Yet the district court gave the USPS a mulligan.68 When the

court below gave the USPS another chance to attempt to justify its

withholdings under exemption 7(A), it felt compelled to instruct

the USPS to be mindful of the standards applicable in this

Circuit.69 In particular, the district court instructed, the

declarations must explain with some specificity how disclosure

could reasonably be expected to interfere with enforcement

67Id. at 46 (quoting Tax Analysts v. IRS, 294 F.3d 71, 77 (D.C. Cir.

2002) (Tax Analysts II)), JA 134.

68 Giving government agencies a second and third bite at the apple

to try to justify withholding documents under FOIA, as wasdone in this case, creates an uneven playing field. If this

practice were to become widespread, it would contravene the

policies behind FOIA by encouraging agencies to withhold

requested information without sufficient justification.

69Id. at 40, JA 130.



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proceedings.70 Furthermore, the district court admonished the

USPS to indicate whether enforcement proceedings are

reasonably anticipated not just possible and must make that

assessment as of the time of the submission of its renewed motion

for summary judgment.71

If the district court hoped for a better second or third shot by

the USPS, it must surely have been disappointed. In the third

round of summary judgment motions, even after being warned

against conclusory statements of privacy interests, the USPS

failed to offer anything specific to justify continued withholding.

Indeed, in some cases, the USPS even withheld documents that

had once been in the public domain.72

The district court noted:

[A USPS officials] supplemental declaration

contains no factual proffer that might bolster

this conclusory statement. She adds only that

she applied a balancing test that assessed the

public interest, and then makes another

conclusory statement that redactions were

necessary to protect the employees involved in

the investigation from harassment. . . . like the

70Id. (internal quotation omitted) (emphasis in original).

71Id. (internal quotation omitted).

72 Second FOIA Opinion, 667 F. Supp. 2d at 63, JA 117.



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names of postal inspectors discussed earlier,

defendant has not offered anything more than

conclusory statements as to why this

information should not be public.73

The district court further noted that the USPS offer[ed] no

explanation whatsoever as to why this case presents one of those

identified circumstances of a risk of harassment or animosity.74

That the USPS released documents after being informed by

the court that its claims for withholding were unsupported or

untenable does not confer a reasonable basis in law on those

claims. Courts have generally required that defendants, at a

minimum, provide meaningful justification for inactivity or refusal

to turn over requested information.75

In considering United Americas motion for attorneys fees,

however, the district court ignored all of USPSs repeated failures

to justify its withholdings. The district court focused only on

whether the USPS had stated a claim under Exemption 7(C)

73Id. at 60, 62.

74Id. at 64 (internal quotation omitted), JA 118.

75Judicial Watch, Inc. v. Bureau of Land Mgmt., 562 F. Supp. 2d

159, 174 (D.D.C. 2008), overruled on other grounds, 610 F.3d 47

(D.C. Cir. 2010).



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based on sound legal theory for continuing to withhold the

documents remaining in the third round of cross-summary

judgment motions.76

A sound legal theory is not sufficient; to have

a reasonable basis in law, an agency must support its Exemption

7(C) claims with some factual basis for the claim that

harassment, intimidation, or physical harm will result from

disclosure of individuals names.77 The USPS failed to provide

any factual basis to show that the legal standards cited actually

applied to the documents it withheld.

The district court failed to consider that the USPS had

presented no viable support for its assertions that the exemptions

claimed were actually applicable to the documents withheld. This

failure requires reversal of the district courts denial of attorneys

fees under FOIA.


77Id. (internal quotation omitted) (citing Judicial Watch, Inc. v.

FDA, 449 F.3d 141, 153 (D.C. Cir. 2006)).



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B. The USPS Did Not Meet Its Burden To Justify ItsWithholding of Documents Voluntarily

Disclosed.

The district court denied United Americas motion for

attorneys fees in part because it found that the USPSs conduct in

litigation was not recalcitrant or obdurate.78 The district court

ignored the fact that the USPS forced United America to litigate

through three rounds of summary judgment motions but found

that the USPSs numerous requests for extension over four years

of litigation was ([]perhaps unfortunately) fairly commonplace

with the federal government in this Court's experience.79!By thatstandard, any opposition to FOIA requests that fall short of

blatantly ignoring court orders would not be unreasonable. Such a

standard would lead to increased governmental resistance to valid

FOIA requests.

The district court failed to consider the fact that this long-

running FOIA litigation was necessary only because the USPS

forced United America to petition the federal courts for documents


79Id.



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to which it was entitled. Nor did the district court consider

whether the USPS had a reasonable basis for withholding

documents that it ultimately voluntarily disclosed after this

litigation was initiated. For example, although it claimed

exemptions under 7(A), the USPS never even attempted to show

how the information it withheld could reasonably be expected to

interfere with enforcement proceedings. 5 U.S.C. 552(b)(7)(A).80

InDavy v. CIA, this Court overturned a similar denial of

attorney fees when the district court found no basis to conclude

that the government unreasonably withheld requested

documents.81 This Court held that this standard mistakenly

shifted the burden to the requester.82!

The district court has made

the same mistake in this case, inquiring only whether the USPS

unreasonably withheld the information ultimately ordered

released. As inDavy, [t]he question is not whether [United

America] has affirmatively shown that the agency was

80 First FOIA Opinion, 531 F. Supp. 2d at 38, JA 129.

81Davy v. CIA, 550 F.3d 1155, 1163 (D.C. Cir. 2008).

82Id.



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unreasonable, but rather whether the agency has shown that it

had any colorable or reasonable basis for not disclosing the

material until after [United America] filed suit.83

Under the fee-entitlement rule affirmed by this Court in

Brayton, if the government cannot carry its burden to show that it

was justified as a matter of law in refusing a plaintiffs FOIA

request, a substantially prevailing plaintiff may receive attorney

fees as long as his claim was not insubstantial.84 The USPS did

not even try to meet this burden. The USPS offered no argument

that it had a reasonable basis for withholding the documents it

voluntarily disclosed after the district court informed it that its

justifications were conclusory. The district court was quite

adamant in its first summary judgment opinion that the USPS

justifications with regard to these documents were unreasonable,

but failed to recall these determinations in considering the motion

for attorney fees.

83See id.

84Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 526 (D.C.

Cir. 2011) (emphasis added).



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Furthermore, the issue of whether a government agency has

forced the person seeking information under FOIA to litigate is

one of central concern when determining whether to award

attorney fees. In enacting the attorney fees provision, Congress

realized that too often the insurmountable barriers presented by

court costs and attorney fees to the average person requesting

information under the FOIA enabled the government to escape

compliance with the law.85 In this case, the USPS pressed every

legal lever, forcing United America to litigate through three

rounds of cross summary judgment motions and an appeal by the

government (that was ultimately withdrawn), forcing over four

years of expensive federal court litigation.

Congress enacted the attorney fees provision in order to

ensure that individuals and small entities who could not otherwise

afford expensive federal court litigation are able to assert their

rights to information from government agencies. A grudging

application of [the attorney fees] provision, which would dissuade

85Cuneo, 553 F.2d at 1363-64 (citing S.Rep.No.93-854, 93d Cong.,

2d Sess. 17 (1974)).



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those who have been denied information from invoking their right

to judicial review, would be clearly contrary to congressional

intent.86

As this Court recognized inDavy, [i]f the government could

defeat an award of fees by citing a lack of resistance after the

requester files a lawsuit to obtain requested documents, then it

could force plaintiffs to bear the costs of litigation.87 This was not

a situation like that in Vermont Low Income Advocacy Council v.

Usery where the government agency was taking extra time to try

to comply with FOIA obligations.88 Rather, unlike in Sampson,

this case is one of absolute resistance to disclosure before the

plaintiff sought judicial review.89

The district court erred in failing to consider that the USPS

imposed this avoidable expense on United America and its

attorneys in denying attorneys fees. Because there was no

86Sampson, 559 F.2d at 715.

87Davy, 550 F.3d at 1163.

88Vermont Low Income Advocacy Council v. Usery, 546 F.2d 509,

513 (2d Cir. 1976).

89Sampson, 559 F.2d at 716.



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evidence that the USPS had a reasonable basis for withholding

the overwhelming majority of documents ultimately released in

the course of this litigation, the district court abused its

discretion in determining that the fourth factor weighed in the

agency's favor.90

CONCLUSION

If the term public interest does not encompass attempts to

root out discrimination by government agents, then the term has

lost all meaning. The rule set forth by the district court would

limit FOIA attorney fees to media companies and those in

academic pursuits. Congress did not intend to limit attorney fees

so.

Congress intended attorney fees to be available to

individuals and small businesses without sufficient commercial

resources or incentive to engage in the costly effort of asserting

their rights to governmental information in federal courts. It is

because Congress recognized that government agencies had been

denying information requests with no reasonable basis in law,

90See Davy, 550 F.3d at 1163.



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forcing requesters to look to the courts to enforce these rights, that

the FOIA attorney feesprovisions were enacted. Because thedistrict courts order denying attorney fees in this case frustrates

these Congressional policies, United America respectfully requests

that this Court reverse the district courts decision denying FOIA

attorney fees.

Respectfully submitted,

December 9, 2011

William P. Farley, Esquire

Law Office of William P.

Farley, P.C.

717 D Street, N.W

Washington, D.C. 20004

John F. Karl, Jr.McDonald & Karl

1150 Connecticut Ave., N.W.

Ninth floor

Washington, D.C. 20036!

/s/ Noah A. Clements

Noah A. Clements*

THE CLEMENTS FIRM

1250 Connecticut Avenue NW,

Suite 200


(202) 630-0544

[email protected]* Counsel of Record

! Counsel for Appellant UnitedAmerica Financial, Inc.



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CERTIFICATE OF WORD COUNT

I hereby certify that the attached Appellants Brief in

Century Schoolbook, 14-point font conforms to the 14,000 word

limit imposed by FRAP 32(a)(7)(B). This Brief, including footnotes,

contains 6,409 words.


Noah A. Clements

CERTIFICATE OF SERVICE

I hereby certify that I caused the attached Appellants Brief

and accompanying Joint Appendix to be served on all parties

electronically via the Courts CM/ECF system on December 9,

2011. A paper copy will be also be mailed first class to:

CLAIRE WHITAKER

Assistant United States Attorney

555 Fourth Street, NW,

Room E-4204



Noah A Clements


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