HOHNER v. UNITED STATES DEPARTMENT OF JUSTICE (2020)
United States Court of Appeals, Ninth Circuit.
Edward Dean HOHNER, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, U.S. Dept. of Homeland Security; U.S. Customs Service; U.S. Immigration and Customs Enforcement, Defendant-Appellee.
Decided: July 09, 2020
Before: BEA and BADE, Circuit Judges, and Y. GONZALEZ ROGERS,* District Judge.
Kasey Curtis, Reed Smith LLP, Los Angeles, CA, Paula M. Mitchell, Esquire, Loyola Law School, Los Angeles, CA, for Plaintiff-Appellant Matthew Jimenez Barragan, Esquire, Jessica O. Cheh, Assistant U.S. Attorney, USLA - Office of the U.S. Attorney, Los Angeles, CA, for Defendant-Appellee
Edward Dean Hohner appeals from a summary judgment in favor of the defendants in his action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. We have jurisdiction under 28 U.S.C. § 1291 and review the grant of summary judgment de novo. Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 990 (9th Cir. 2016) (en banc) (per curiam). We affirm.
FOIA confers jurisdiction on district courts to compel agencies to release “(1) improperly (2) withheld (3) agency records.” GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 384, 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980) (citation omitted). An agency is not required to produce responsive documents if they fit within one of nine statutory exemptions. See 5 U.S.C. § 552(b). An agency also properly withholds documents that are subject to an injunction prohibiting their release because, under those circumstances, the agency has no discretion to exercise. See GTE Sylvania, 445 U.S. at 386-87, 100 S.Ct. 1194. Additionally, there is no indication that Congress intended FOIA to “require an agency to commit contempt of court in order to release documents.” Id. at 387, 100 S.Ct. 1194.
After filing this FOIA action, Hohner narrowed its scope to certain documents withheld by Immigration and Customs Enforcement (“ICE”). The district court granted summary judgment in favor of the government because the documents at issue were subject to a 1998 sealing order issued by the United States District Court for the Southern District of California and that court later issued a clarifying order stating that the sealing order was intended to prohibit the disclosure of those documents. The district court relied on Morgan v. United States Dep't of Justice, 923 F.2d 195, 196-98 (D.C. Cir. 1991), and concluded that the rationale in GTE Sylvania extends to a sealing order when the issuing court intends for the sealing order to operate like an injunction by prohibiting the disclosure of sealed records. See id. (citing GTE Sylvania, 445 U.S. at 384, 386-87, 100 S.Ct. 1194).
The government bears the burden of showing that a sealing order prohibits disclosure of relevant agency records requested under FOIA. See United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (“[T]he strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents.”). Here, in support of its motion for summary judgment, the government submitted the district court's sealing order and the subsequent order clarifying that the sealing order was intended to prohibit disclosure of the documents at issue. Considering both the sealing order and the clarifying order, there was no genuine issue on whether ICE lacked discretion to disclose the documents and, thus, the agency properly withheld the documents. See GTE Sylvania, 445 U.S. at 386-87, 100 S.Ct. 1194. The district court properly granted summary judgment.
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