No. 11-55434 __________________________________ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ___________________________________ CAREY DWAYNE DORSEY, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. _________________________________________________________ On appeal from the United States District Court for the Southern District of California, Hon. Roger T. Benitez, District Judge, Presiding Civ. No. 3:09-cv-519 _________________________________________________________ BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _________________________________________________________ P. DAVID LOPEZ SUSAN R. OXFORD General Counsel Attorney CAROLYN L. WHEELER KEEGAN DRENOSKY Acting Assoc. General Counsel Extern LORRAINE C. DAVIS EQUAL EMPLOYMENT OPPORTUITY Assistant General Counsel COMMISSION 131 M Street, N.E.,Washington, D.C. 20507 (202) 663-4791 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF JURSIDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Nature of the Case and Course of Proceedings. . . . . . . . . . . . . . 2 2. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. Decisions Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The District Court did not Abuse its Discretion when it Denied Dorsey's Motion for Reconsideration A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . 6 B. The District Court did not Clearly Abuse its Discretion. . . . . . . . . 7 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . 10 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Page(s) American Ironworks & Erectors, Inc. v. North Am. Const. Corp., 248 F.3d 892, (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . 6 Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 2003). . . . . . . . . . . . .6, 7, 8 Plotkin v. Pacific Tel. & Tel. Co., 688 F.2d 1291 (9th Cir.1982). . . . . . . . 7 Statutes Freedom of Information Act, 5 U.S.C. § 552. . . . . . . . . . . . . . . . . .1, 2 5 U.S.C. § 522(a)(4)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Federal Rules FED. R. CIV. P. 59(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 FED. R. CIV. P. 60(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Miscellaneous 7 J. Moore & J. Lucas, Moore's Federal Practice ¶ 60.19 (2d ed. 1983) STATEMENT OF JURISDICTION This is an appeal from the district court's denial of Plaintiff-Appellant Carey Dwayne Dorsey's motion for reconsideration of the district court's final judgment denying Dorsey's application under the Freedom of Information Act, 5 U.S.C. § 552. The district court had jurisdiction over this action under 5 U.S.C. § 522(a)(4)(B). The district court entered final judgment for Defendant-Appellee Equal Employment Opportunity Commission on September 30, 2010. SER.31 (R.25).<1> On February 16, 2011, the district court denied Dorsey's motion for reconsideration, which Dorsey had filed on February 15, 2011. SER.32 (R.28 at 3, Motion for Reconsideration); SER.36 (R.29, Order Denying Motion). On March 16, 2011, Dorsey filed a notice of appeal with this Court. SER.38 (R.30). This Court has jurisdiction to hear this appeal under 28 U.S.C. § 1291. STATEMENT REGARDING ORAL ARGUMENT The Commission respectfully requests this case be submitted without oral argument because the facts and legal arguments are adequately presented in the briefs and record, and oral argument would not significantly aid this Court. STATEMENT OF THE ISSUE Whether the district court acted within its discretion when it denied Dorsey's motion to reconsider the court's grant of summary judgment in favor of the EEOC. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the United States District Court for the Southern District of California. Plaintiff Carey Dwayne Dorsey, acting pro se, filed this action on March 16, 2009, alleging that the Defendants Equal Employment Opportunity Commission ("EEOC" or "Commission") and The Surfer Restaurant and Hotel withheld records under their control in violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. SER.5 (R.1, Compl.).<2> Dorsey did not oppose the EEOC's motion for summary judgment, SER.9 (R12), and the district court granted the motion on September 30, 2010. SER.24 (R. 24). On February 15, 2011, Dorsey moved for reconsideration, and the district court denied reconsideration on February 16, 2011. SER.32-37 (R.28; R.29). Plaintiff filed a notice of appeal on March 16, 2011. SER.38 (R.30). This Court issued a briefing schedule on March 17, 2011, requiring Dorsey to file his opening brief by June 24, 2011. (R.32). On April 13, 2011, this Court entered an order stating that because Dorsey did not file his notice of appeal within 60 days following the district court's September 2010 final judgment and did not file any timely motion to toll the time for appeal, the scope of this appeal is limited to a review of the district court's February 16, 2011, order denying Dorsey's motion for reconsideration. SER.39 (R.34). The April 13, 2011, order stated that the earlier briefing schedule remained in effect. Dorsey did not file his opening brief by June 24, 2011. Id. On October 3, 2011, this Court denied the EEOC's motion to dismiss this appeal for failure to prosecute and granted Dorsey's motion for an extension of time to file his opening brief to November 4, 2011. (R.35, Order). Dorsey filed his informal brief on November 2, 2011. B. Statement of the Facts On February 2, 2009, Dorsey submitted a FOIA request to the EEOC's Los Angeles District Office, asking the EEOC to help him find the "United States District federal court of San Diego CA Court Case Document number" related to EEOC Charge No. 345870217. SER.8 (R.1 at 9-10). The EEOC asked Dorsey to clarify his FOIA request. SER.6 (R.1 at 8). Interpreting this response as a denial, Dorsey appealed to the EEOC's Office of Legal Counsel. SER.18 (R.12-2; Exh.1) The EEOC conducted a thorough search of its records and learned that Dorsey had filed a charge with the EEOC on March 3, 1987, alleging "The Surfer Restaurant and Hotel" ("Surfer Restaurant") discriminated against him based on his race when it terminated his employment SER.15 (R.12-2 (Declaration of Stephanie Garner, ¶ 8)). The Commission's records indicate the EEOC resolved the charge on August 11, 1988, through a negotiated settlement between Dorsey and Surfer. SER.15 (R.12-2 at ¶¶8-9). The EEOC's search found no evidence that any EEOC lawsuit was ever filed against The Surfer Restaurant on behalf of a charging party named "Dorsey," and the EEOC responded to Dorsey that it had no record of the district court docket number Dorsey requested. (R.12-2 at ¶¶ 6-8). Dorsey then filed this action in district court, seeking to compel the EEOC to produce the district court docket number for the lawsuit Dorsey claimed that the EEOC had filed against Surfer Restaurant on his behalf. SER.5 (R.1) The EEOC moved for summary judgment on the ground that a diligent search of EEOC files had produced no indication such a lawsuit had ever been filed, noting that the EEOC could not produce what it did not have. SER.12 (R.12-1 at 4). Since Dorsey was seeking a docket number for a lawsuit that he believed had been filed in the United States District Court for the Southern District of California-the same court in which his FOIA action was pending-the EEOC also asked the district court to take judicial notice of the absence of any lawsuit entitled Dorsey and/or EEOC v. Surfer Restaurant. Id. Dorsey filed nothing in opposition to the EEOC's summary judgment motion. C. Decisions Below 1. The district court granted summary judgment to the EEOC on September 30, 2010. SER.24 (R.24). The court reviewed the steps the EEOC took in response to Dorsey's FOIA request and ruled that the EEOC had satisfied its burden under FOIA by demonstrating it conducted an adequate search that was reasonably calculated to uncover any documents relevant to Dorsey's FOIA request. SER.28- 29 (R.24 5-6). The district court also took judicial notice that the court's record of active and closed cases does not reflect a case was ever filed in the Southern District of California regarding Dorsey's EEOC charge. SER.29-30 (R.24 at 6-7). 2. On February 15, 2011-more than four months after the district court entered final judgment for the EEOC-Dorsey moved for reconsideration. SER.32 (R.28). Dorsey offered no evidence that the EEOC's response to his FOIA request failed to meet FOIA standards, but stated only that, as a pro se plaintiff, he was unaware of the court rules and that the court had violated his civil rights by granting summary judgment to the EEOC. Id. On February 16, 2011, the district court denied Dorsey's motion for reconsideration. SER.36 (R.29). The district court noted that "a motion for reconsideration should not be granted, absent highly unusual circumstances" such as where "the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." SER.36 (R.29 at 1) (quoting Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); other citation omitted). The district court stated that it granted summary judgment to the EEOC originally not because Dorsey had failed to oppose the EEOC's motion, but because, viewing the facts in the light most favorable to Dorsey, the EEOC had established that it "performed an adequate search reasonably calculated to uncover all documents" relevant to Dorsey's FOIA request. The district court stated that Dorsey had "not identified any highly unusual circumstances, newly discovered evidence, clear error or an intervening change in controlling law." SER.37 (R.29 at 2). Dorsey appealed the district court's denial of reconsideration. On appeal, Dorsey argues that he has not received any benefits from his "federal court judgment," that the EEOC lost or stole court records, and that the EEOC is committing "discriminatory acts [sic] violations against me." Appellant Dorsey's Informal Brief at 2-3. ARGUMENT The District Court did not Abuse its Discretion when it Denied Dorsey's Motion for Reconsideration A. Standard of Review Dorsey filed his motion for reconsideration four and a half months after entry of judgment. Therefore, it is properly considered a Rule 60(b) motion. See American Ironworks & Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892, 898- 99 (9th Cir. 2001) (motion for reconsideration treated as a motion to alter or amend judgment under F.R.C. P. 59(e) if filed within ten days of entry of judgment and, otherwise, as a Rule 60(b) motion for relief from judgment or order); FED. R. CIV. P. 59(e); FED. R. CIV. P. 60(b). This Court reverses a district court's order denying a Rule 60(b) motion for relief from a judgment or order "only upon a clear showing of abuse of discretion." See Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989); see also 7 J. Moore & J. Lucas, Moore's Federal Practice ¶ 60.19 (2d ed. 1983). B. The district court did not clearly abuse its discretion The district court acted well within its judicial discretion when it denied Dorsey's motion for reconsideration. Reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Reconsideration should only be granted where there are "highly unusual circumstances," the moving party presents "newly discovered evidence," the court "committed clear error," or "there is an intervening change in the controlling law." Id. (citation omitted). To prevail in an appeal from a district court's denial of reconsideration, "[i]t is not enough to show that a grant of the motion might have been permissible or warranted; rather the decision to deny the motion must have been sufficiently unwarranted as to amount to an abuse of discretion." Plotkin v. Pacific Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982). This Court finds abuse of discretion when it is "convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances." Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000). The district court did not abuse its discretion when it denied reconsideration here. Dorsey's motion for reconsideration pointed to none of the circumstances set forth in Carroll. As the district court correctly found, Dorsey presented no newly discovered evidence in his motion for reconsideration. Indeed, Dorsey did not present any evidence in his reconsideration motion-new or otherwise. SER.33-34 (R.28 at 2-3). Nor did Dorsey argue that there had been any intervening change in controlling law or demonstrate that the grant of summary judgment in favor of the EEOC was "clear error." Id. Any such showing would have been difficult, in any event, as the district court's original determination was firmly premised both on the EEOC's uncontested evidence that it conducted a thorough examination of its records and found nothing responsive to Dorsey's request as well as the court's own judicial notice that no such lawsuit was reflected in the court's judicial records. SER.14 (R.12-2). In granting summary judgment to the EEOC here, the district court relied on an EEOC official's detailed and non-conclusory sworn declaration that the EEOC had conducted a diligent search of its records that was reasonably calculated to uncover any information relevant to Dorsey's case, and that the EEOC's search turned up no information concerning a United States district court docket number for a federal lawsuit against the Surfer Restaurant by or on behalf of Dorsey. SER.28-29 (R.24 at 5-6). In his motion for reconsideration, Dorsey failed to present any contrary evidence that the EEOC's search was inadequate or made in bad faith. SER. 33-34 (R.28 at 2-3). Even though pleadings filed by a pro se litigant are to be "liberally construed," see Erikson v. Pardus, 551 U.S. 89, 94 (2007), the pleadings must still provide evidence to support the plaintiff's contentions. Since Dorsey's motion for reconsideration offered absolutely no factual support for his contention that the EEOC was withholding the docket number for his district court case, and since the district court took judicial notice that the court's own records confirmed the absence of any litigation against the Surfer Restaurant on Dorsey's behalf, the district court acted well within its discretion in denying reconsideration, and this Court should affirm. CONCLUSION For the foregoing reasons, this Court should affirm the district court's denial of reconsideration. STATEMENT OF RELATED CASES There are no related cases of which the EEOC is aware that satisfy the criteria listed in this Court's local rule 28-2.6. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel /s/ Susan R. Oxford __________________________ SUSAN R. OXFORD Attorney KEEGAN DRENOSKY Extern Office of General Counsel Equal Employment Opportunity Commission 131 M Street N.E. Washington, D.C. 20507 (202) 663-4791; fax (202) 663-6090 susan.oxford@eeoc.gov Dated: November 22, 2011 CERTIFICATE OF COMPLIANCE I certify that the foregoing brief is not subject to the type-volume limitations of Fed.R.App.P. 32(a) (7) (B) because this brief complies with Fed.R.App.P. 32(a) (1) - (7) and contains 2,109 words. /s/ Susan R. Oxford __________________________ SUSAN R. OXFORD Attorney Office of General Counsel Equal Employment Opportunity Commission 131 M Street N.E. Washington, D.C. 20507 Dated: November 22, 2011 CERTIFICATE OF SERVICE I hereby certify that the EEOC filed its Brief as Appellee with this Court on November 22, 2011, using the Court's electronic case filing (ECF) system and that, on the same date, two copies of the identical foregoing Brief and one copy of the EEOC's Supplemental Excerpts of Record were mailed, first class, postage prepaid, to the pro se appellant, Carey Dwayne Dorsey, at the following address: Carey Dwayne Dorsey 1146 Joefonenot Road Oakdale, Louisiana 71463 /s/ Susan R. Oxford __________________________ SUSAN R. OXFORD Attorney Office of General Counsel Equal Employment Opportunity Commission 131 M Street N.E. Washington, D.C. 20507 ********************************************************************************** <> <1> "SER.#" refers to the page number in the Appellee EEOC's Supplemental Excerpts of Record containing the items specified in this Court's October 3, 2011, Order and "R.#" refers to the district court's docket number. Appellant Dorsey did not file an Excerpts of Record, per this Court's Order of October 3, 2011. <2> On March 23, 2010, the district court dismissed sua sponte Dorsey's action against The Surfer Hotel and Restaurant because Dorsey sought relief only under FOIA, and Surfer is a private entity to which FOIA does not apply. (R.6).