Patrick Eddington v. DOD

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 4, 2022 Decided June 3, 2022
No. 21-5074
PATRICK EDDINGTON,
APPELLANT
v.
UNITED STATES DEPARTMENT OF DEFENSE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-00442)
Matthew V. Topic argued the cause for appellant. With him
on the briefs was Joshua Burday.
Anna D. Walker, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were R. Craig Lawrence
and Peter C. Pfaffenroth, Assistant U.S. Attorneys. Daniel
Schaefer, Assistant U.S. Attorney, entered an appearance.
Before: HENDERSON and WALKER, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: In July
2019, Patrick Eddington used an email application on his
laptop to send Freedom of Information Act (FOIA) records
requests to fourteen components of the U.S. Department of
Defense (DOD). Not having received any response, he filed a
complaint in district court almost seven months later seeking
an order to require the DOD to conduct a search for and
promptly produce the requested records. Eddington attached
copies of the emails to the complaint. The DOD responded by
moving for summary judgment, relying on a DOD official’s
declaration that all fourteen components had searched for but
had not received any request from Eddington. The district court
granted the DOD’s motion, concluding that Eddington had not
created a genuine dispute as to the DOD’s “receipt” of the
requests under 5 U.S.C. § 552(a)(6)(A)(i). We agree and affirm
the district court.
I. BACKGROUND
The relevant FOIA provision provides: “[U]pon any
request for records made” pursuant to FOIA, a federal agency
must “determine within 20 days . . . after the receipt of any
such request whether to comply with such request.” 5 U.S.C.
§ 552(a)(6)(A), (A)(i) (emphasis added).
3
Eddington alleged that on July 18 and 19, 2019, he emailed
FOIA requests1 to fourteen components2 of the DOD.
Eddington Decl. ¶¶ 8–24, J.A. 55–58. After sending each email
with the “Airmail email application” available on the “Apple
App Store,” Eddington “made a portable document format
(PDF) copy of the email and saved it to the appropriate folder
on [his] Macbook Air computer.” E.g., id. ¶ 11, J.A. 55. In the
ensuing six to seven months, Eddington received no response
from any of the components but did not follow up to confirm
receipt. Instead, on February 14, 2020, he filed a complaint in
district court seeking an order requiring the DOD “to conduct
a reasonable search for records and to promptly produce all
non-exempt requested records.”
On June 10, 2020, the DOD moved for summary
judgment, arguing that Eddington had failed to establish a
genuine dispute of material fact regarding the DOD’s receipt
of his requests. With its motion, the DOD attached the
declaration of Mark Herrington (Herrington Declaration),
Associate Deputy General Counsel in the DOD’s Office of
1
The requests sought information related to the DOD’s
acquisition of information regarding individuals and organizations
not affiliated with the DOD under DOD Directive 5200.27.
Compl. ¶ 6, J.A. 2; Eddington Decl. ¶ 9, J.A. 55; see DOD Directive
5200.27, Acquisition of Information Concerning Persons and
Organizations Not Affiliated with the Department of Defense (Jan.
7, 1980).
2
The fourteen components are: the Office of the Secretary of
Defense, the Defense Intelligence Agency, the National Geospatial
Intelligence Agency, the U.S. Army and ten Commands (Africa,
Central, Cyber, European, Indo-Pacific, Northern, Southern, Special
Operations, Strategic and Transportation).
4
General Counsel. J.A. 48–53. The Herrington Declaration
described his outreach efforts to the components after
Eddington filed suit, the components’ searches and the
components’ FOIA response procedures, including that “[e]ach
component has a standard practice of responding to FOIA
requests to acknowledge receipt, even if they have not finished
processing the request.” See id. ¶ 5–6, J.A. 49. None of the
components responded, Herrington explained, because “none
of the fourteen [DOD] components” had received the requests.
Id. ¶ 3, J.A. 48.
On January 25, 2021, the district court granted the DOD’s
motion. See Eddington v. U.S. Dep’t of Def., No. 1:20-cv-442,
2021 WL 244947 (D.D.C. Jan. 25, 2021). It explained that if
“an agency moves for summary judgment on the ground that it
has not received a plaintiff’s FOIA request, the plaintiff bears
the burden of demonstrating a genuine dispute as to the
agency’s receipt of the request.” Id. at *2 (citing Pinson v. U.S.
Dep’t of Just., 69 F. Supp. 3d 108, 114 (D.D.C. 2014)). It then
concluded that Eddington’s emails and declaration were
insufficient to overcome the presumption of good faith
afforded the government’s declaration. Id. In so concluding,
the court commented that Eddington’s emails support his
“genuinely held belief that he properly sent the FOIA requests”
but do not “create a genuine dispute of fact as to whether any
DOD component received a request.” Id. (emphases in
original). The district court also denied Eddington’s request for
discovery. Id. at *3. Eddington filed a timely appeal on March
22, 2021.
II. ANALYSIS
We have jurisdiction of Eddington’s appeal under 28
U.S.C. § 1291. We review the district court’s grant of summary
judgment de novo, Mayo v. Reynolds, 875 F.3d 11, 19 (D.C.
5
Cir. 2017) (citing Theodore Roosevelt Conservation P’ship v.
Salazar, 661 F.3d 66, 72 (D.C. Cir. 2011)), and “the district
court’s limits on discovery for abuse of discretion,” Citizens for
Resp. & Ethics in Washington v. Off. of Admin., 566 F.3d 219,
221 (D.C. Cir. 2009) (citing Islamic Am. Relief Agency v.
Gonzales, 477 F.3d 728, 737 (D.C. Cir. 2007)).
Eddington mounts two challenges to the district court’s
grant of summary judgment. First, he argues that he provided
sufficient evidence to create a genuine dispute of material fact
regarding the DOD’s receipt of his FOIA requests. Second, he
argues that the district court abused its discretion in denying
discovery. We reject both challenges.
A. RECEIPT OF FOIA REQUESTS
Summary judgment is warranted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). Although “all inferences must be viewed in a light
most favorable to the non-moving party,” Tao v. Freeh, 27 F.3d
635, 638 (D.C. Cir. 1994) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250, 255 (1986); Nat’l Souvenir Ctr., Inc.
v. Historic Figures, Inc., 728 F.2d 503, 512 (D.C. Cir. 1984)),
“the moving party is entitled to judgment as a matter of law if
the nonmoving party ‘fails to make a showing sufficient to
establish the existence of an element essential to [its] case, and
on which [it] will bear the burden of proof at trial,’” Stoe v.
Barr, 960 F.3d 627, 638 (D.C. Cir. 2020) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In a FOIA action,
“[s]ummary judgment may be granted on the basis of agency
affidavits if they contain reasonable specificity of detail rather
than merely conclusory statements, and if they are not called
into question by contradictory evidence in the record or by
evidence of agency bad faith.” Evans v. Fed. Bureau of
6
Prisons, 951 F.3d 578, 584 (D.C. Cir. 2020) (alteration in
original) (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir.
1994)).
We have not previously addressed if a plaintiff responding
to an agency’s summary judgment motion has presented
sufficient evidence to create a genuine dispute of material fact
over agency receipt of a FOIA request. But the district court
has addressed the issue a number of times. See, e.g., Pinson, 69
F. Supp. 3d at 114–15 (granting government’s summary
judgment motion because government provided declaration it
had not received request and requester merely declared prison
mail processing “irregularities” prevented FOIA request from
reaching its destination); Kanaya v. Alcohol, Tobacco, Firearm
& Explosives, 284 F. Supp. 3d 1, 2–3 (D.D.C. 2018) (granting
government’s summary judgment motion because agency
submitted declaration attesting to non-receipt and plaintiff
declared he placed request in prison mail system but admitted
to putting two different agencies on address label).
Consistent with the district court’s approach, it is
undisputed that “receipt” of a FOIA request triggers an
agency’s obligation to respond. See 5 U.S.C. § 552(a)(6)(A)(i);
accord McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir.)
(“[W]hen an agency receives a FOIA request for agency
records in its possession, it must take responsibility for
processing the request.” (internal quotation marks omitted)),
modified on reh’g, 711 F.2d 1076 (D.C. Cir. 1983) (vacating
separate part of opinion). Accordingly, as Eddington notes, if
an agency moves for summary judgment and provides
sufficient evidence that it did not receive a request, the
requester—as the non-movant seeking “to support . . . [an]
essential element[] of [his] claim,” Durant v. D.C. Gov’t, 875
F.3d 685, 690 (D.C. Cir. 2017) (fourth alteration in original)
(quoting Grimes v. District of Columbia, 794 F.3d 83, 93 (D.C.
7
Cir. 2015))—must “come forward with proof to create a
genuine dispute of fact that he sent the FOIA request to the
agency and the agency received it,” Kanaya, 284 F. Supp. 3d
at 2 (emphasis in original) (citing Pinson, 69 F. Supp. 3d at
113–14). As is true for agency declarations submitted to
establish the adequacy of a FOIA search for requested records,
an agency’s declaration attesting to a fruitless search for a
request must be “relatively detailed and non-conclusory,
and . . . submitted in good faith.” See SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (alteration in
original) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d
770, 771 (D.C. Cir. 1981)); see also infra, note 4. If it is, the
declaration is accorded a presumption of good faith, which the
requester cannot rebut with “purely speculative claims about
the existence and discoverability of [the request].” See
SafeCard Servs., 926 F.2d at 1200 (quoting Ground Saucer
Watch, 692 F.2d at 771).
Eddington argues that the district court erred in (1) relying
on the Herrington Declaration, (2) concluding that the copies
of his allegedly sent emails were insufficient to create a
genuine dispute over “receipt” and (3) failing to apply the
mailbox rule. We address each argument seriatim.
First, Eddington argues that it “goes well beyond any
agency deference and borders on vacuous” to allow the
government to prevail based solely on a declaration that it
could not find a request. Appellant Br. 9. But Eddington’s
framing—that any declaration denying receipt after a search
would warrant granting summary judgment to the
government—is flawed. We afford a presumption of good faith
only if we conclude that an agency’s declaration is “relatively
detailed and non-conclusory, and . . . submitted in good faith.”
See SafeCard Servs., 926 F.2d at 1200 (quoting Ground Saucer
Watch, 692 F.2d at 771); see also Iturralde v. Comptroller of
8
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (listing ways
government affidavit or declaration could be inadequate).3
The Herrington Declaration plainly meets that standard.
As the person “in charge of coordinating the [DOD’s] search”
for the requests, Herrington was “the most appropriate person
to provide a comprehensive [declaration].” SafeCard Servs.,
926 F.2d at 1201. In detailing his search for Eddington’s
requests, Herrington began by “contact[ing] the FOIA office in
each of the fourteen listed components.” Herrington Decl. ¶ 5,
J.A. 49. After searches of “email files and folders, including
spam folders, and the logs they keep of incoming FOIA
requests,” the components invariably informed him they “could
not locate any evidence of having received the requests.” Id.He explained that all of the components have a policy of
responding to acknowledge receipt, “even if they have not
finished processing [a] request.” Id. ¶ 6, J.A. 49. Although the
acknowledgment procedures vary, Herrington detailed that the
U.S. Indo-Pacific Command’s system sends an automated
response to every requester after an emailed request arrives in
the Command’s “FOIA Organizational Mailbox.” Id. ¶ 8, J.A.
50. Herrington successfully tested the system as part of his
search for Eddington’s requests. Id. ¶ 9, J.A. 50–51. Not
finding any evidence that even one of the components received
a request from Eddington, Herrington concluded “that none of
the 14 [DOD] component agencies . . . received any of the 14
FOIA requests” allegedly sent by Eddington. Id. ¶ 11, J.A. 51.
3
We also note that information asymmetry is inherent in the
FOIA context. See DiBacco v. U.S. Army, 795 F.3d 178, 190 (D.C.
Cir. 2015) (relying on government affidavit and noting that “FOIA
is not a wishing well; it only requires a reasonable search for records
that an agency actually has”).
9
Eddington argues that the Herrington Declaration is not
entitled to the presumption of good faith because it does not
provide affirmative “evidence of non-receipt” but instead
includes only evidence that the DOD could not locate his
requests months after Eddington allegedly sent them. But
Eddington ignores that the components searched for the
requests in the places that routinely contain received requests:
email inboxes, FOIA logs and spam folders. See id. ¶ 5, J.A.
49. Attempting to provide an example of receipt evidence that
would not be months-old, Eddington contends that the DOD
could have searched for and provided records of automatic
deletions from spam folders. But Eddington does not explain
how a present-day search for those records is meaningfully
different from a present-day search of emails previously
received by spam folders and email inboxes.4 Accordingly, the
Herrington Declaration warrants a presumption of good faith,
which Eddington must rebut to prevail.
Second, Eddington argues that his declaration and PDF
copies of the emails rebut the Herrington Declaration and
create a genuine dispute regarding receipt. In particular,
Eddington relies on district court cases to argue that he
provided sufficient evidence of receipt. See, e.g., Pinson, 69 F.
Supp. 3d at 114 (once agency establishes presumption of good
faith, “[t]he plaintiff must provide something more than his
own declaration to create a genuine issue of material fact as to
4
Eddington’s arguments as to deleted spam emails manifest he
challenges the adequacy of the DOD’s search for the requests,
reinforcing the similarity to other FOIA searches for government
records and the use of the good faith presumption in evaluating the
government’s search for Eddington’s requests. See Mobley v. CIA,
806 F.3d 568, 580–83 (D.C. Cir. 2015) (treating request for agency
“to search a particular record system” as challenge to adequacy of
search).
10
the agency's receipt of the FOIA request” (citations omitted)).
But Eddington ignores the operative phrase in the statute: “after
the receipt.” See 5 U.S.C. § 552(a)(6)(A)(i). The PDF copies of
Eddington’s emails include timestamps indicating when his
Airmail application processed the emails, see, e.g., J.A. 5, but,
as the district court observed, the emails show only that he sent
the requests, not that any of the fourteen components received
them. Eddington, 2021 WL 244947, at *2. Eddington cannot
point to a single response from any of the components, not even
one automatically generated from U.S. Indo-Pacific Command.
Eddington’s assertions that his requests were all filtered to
spam folders based on all fourteen components having the
same e-mail configurations and servers and that the requests
were then automatically deleted amount to “purely speculative
claims about the existence and discoverability” of his requests
and are insufficient to overcome the presumption of good faith
accorded to the Herrington Declaration. See SafeCard Servs.,
926 F.2d at 1200 (quoting Ground Saucer Watch, 692 F.2d at
771); see also Mobley v. CIA, 806 F.3d 568, 582 (D.C. Cir.
2015) (rejecting requester’s “demand” for agency “to search a
particular record system” as “mere fiat” when requester
provides no evidence record system may contain responsive
records).5
Third, Eddington argues that the mailbox rule should apply
under FOIA and that the “sent” emails should be presumed
“received.” The common law mailbox rule establishes a
rebuttable presumption of receipt upon evidence that a properly
addressed piece of mail has been placed in the mail system. See
5
Eddington’s assertions became even more tenuous at oral
argument when, in response to arguments raised in Eddington’s reply
brief, the DOD clarified that the requests would have been sent to
fourteen different email servers. Oral Arg. Tr. 10:12–10:13, 10:19–
10:22.
11
Henderson v. Carbondale Coal & Coke Co., 140 U.S. 25, 36–
37 (1891); Rosenthal v. Walker, 111 U.S. 185, 193–94 (1884).
Aside from a brief phrase from an unreported district court
case, see Schoenman v. FBI, No. 04-2202, 2006 WL 1126813,
at *13 (D.D.C. Mar. 31, 2006) (“Without a copy of a stamped
envelope showing the mailing of the request . . . [requester]
cannot meet the statutory [receipt] requirement[].”), Eddington
cites no instance in which courts have referred to, much less
used, the mailbox rule to presume receipt of any FOIA request.
Instead, Eddington points to use of the rule in other contexts
and invites us to apply the rule to his emailed requests. See,
e.g., Hagner v. United States, 285 U.S. 427, 430–31 (1932)
(presumption that letter deposited in post office “reached its
destination” supported conclusion mail fraud indictment
relying on delivery of letter was not defective); Legille v. Dann,
544 F.2d 1, 4–5 (D.C. Cir. 1976) (recognizing presumption of
delivery and concluding summary judgment was not warranted
when presumption of delivery conflicted with presumption of
regularity of Patent Office procedures).
We decline his invitation because even assuming
arguendo the presumption applies to emailed FOIA requests,6
6
The DOD mounts a thorough argument that the mailbox rule
should not apply to FOIA requests for three reasons. First, it argues
that there is no statutory ambiguity in “receipt.” See Houston v. Lack,
487 U.S. 266, 272–75 (1988) (noting general rule in civil cases is
inapplicability of mailbox rule but applying rule if it was unclear
whether “filed with the clerk” meant mailing or actual receipt of pro
se prisoner’s notice of appeal of denial of habeas petition). But see
Fex v. Michigan, 507 U.S. 43, 51–52 (1993) (adopting interpretation
of “shall have caused to be delivered” that required showing actual
receipt, even though statute was ambiguous). Second, the DOD
argues the rule would increase discovery and thus disputes about
when a FOIA request was received. See Houston, 487 U.S. at 275(“[T]he rejection of the mailbox rule in other contexts has been based
12
Eddington has not presented sufficient evidence to trigger the
presumption. The longstanding rationale for the presumption
of receipt under the mailbox rule is the regularity of successful
transmissions in the U.S. Postal Service. See Henderson, 140
U.S. at 36–37; 9 Wigmore on Evidence § 2519, at 567
(Chadbourn rev. 1981) (“The presumption [of receipt] rests
upon the supposed uniform efficiency of the postal service in
delivering letters duly stamped, addressed, and mailed into its
custody.”). Emails, however, are not Postal Service mail.
Although Eddington provides a link to download the
application from the Apple App Store, he has presented no
evidence that his “Airmail email application” operates with the
same regularity as the Postal Service. See Eddington Decl. ¶ 12
& n.2, J.A. 55. He has not even provided evidence that he
successfully sent other emails using the application.7 Without
evidence of the consistent functionality of the email
application, there is no factual basis from which to derive a
presumption of receipt. See 2 McCormick on Evidence § 343
(8th ed.) (“Generally, . . . the most important consideration in
the creation of presumptions is probability. Most presumptions
in part on concerns that it would increase disputes and uncertainty
over when a filing occurred.”). Finally, the DOD argues a
presumption of receipt would be contrary to established FOIA
precedent on the reliability of government statements. See Nat’l
Archives & Recs. Admin. v. Favish, 541 U.S. 157, 174 (2004)
(“[t]here is a presumption of legitimacy accorded to the
Government’s official conduct” when dealing with FOIA requests).
7
Eddington argues that we should presume receipt based on the
lack of email “bounce backs.” But, again, we do not know if the
Airmail application triggers bounce backs with the same regularity
as the “return to sender” function of the U.S. postal service. See
generally Elvis Presley, Return to Sender (Elvis Presley Music
1962).
13
have come into existence primarily because the judges have
believed that proof of fact B renders the inference of the
existence of fact A so probable that it is sensible and timesaving
to assume the truth of fact A until the adversary disproves it.”);
cf. Am. Boat Co. v. Unknown Sunken Barge, 418 F.3d 910, 914
(8th Cir. 2005) (mailbox rule could apply to “other forms of
communication” than mail “provided they are accepted as
generally reliable and that the particular message was properly
dispatched” (quoting Kennell v. Gates, 215 F.3d 825, 829 (8th
Cir. 2000)).
In sum, Eddington, who filed suit over six months after
saving the requests on his computer,8 has presented insufficient
evidence to create a genuine dispute regarding the DOD’s
“receipt” of his FOIA requests. See 5 U.S.C. § 552(a)(6)(A)(i).
8
Eddington’s main worry is that he has lost his place in the
FOIA line at the components because, almost three years after he
saved the emails, the components have not received the requests
through the proper channels. See Oral Arg. Tr. 5:7–5:11. The
operative FOIA provision provides for an agency response within
twenty days of receipt. See 5 U.S.C. § 552(a)(6)(A)(i). Keeping in
mind that “common sense often makes good law,” Peak v. United
States, 353 U.S. 43, 46 (1957), we note that rather than letting six
months of silence go by, Eddington could have saved time by
resending the emails, following up with any of the components or by
filing this suit twenty-one days after saving the requests on his
computer and that the government is free to expedite the processing
of Eddington’s requests once received, see Pinson v. U.S. Dep’t of
Just., 69 F. Supp. 3d 108, 114–15 & n.4 (D.D.C. 2014) (finding
insufficient evidence of receipt of FOIA request but encouraging
applicable agency to expedite request once properly submitted).
14
B. DISCOVERY
Eddington also briefly argues that the district court abused
its discretion in failing to order discovery “on the disputed
question of what happened to the requests after they were sent
to the required email addresses.” Appellant Br. 9. The district
court noted that “[d]iscovery in FOIA cases is ‘rare’” and
“permissible only upon a showing that ‘the agency acted in bad
faith.’” Eddington, 2021 WL 244947, at *3 (quoting In re
Clinton, 973 F.3d 106, 113 (D.C. Cir. 2020)). It then concluded
that Eddington had made no such showing. Id.We see no abuse of discretion in the denial of discovery.
See SafeCard Servs., 926 F.2d at 1200 (“This court will
overturn the district court’s exercise of its broad discretion to
manage the scope of discovery only in unusual circumstances.”
(citing Brune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988)).
Again, the DOD’s “reasonably detailed, nonconclusory
[declaration] describing its efforts” established the adequacy of
its search for Eddington’s requests, Baker & Hostetler LLP v.
U.S. Dep’t of Com., 473 F.3d 312, 318 (D.C. Cir. 2006), and
assertions about automatically deleted spam emails do not
amount to a showing of bad faith, see id. (“[A] mere assertion
of bad faith is not sufficient to overcome a motion for summary
judgment.” (citation omitted)).
For the foregoing reasons, the district court’s grant of
summary judgment is affirmed.
So ordered.