IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 01-56653 STANLEY O. GAINES, JR., Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. On Appeal from the United States District Court for the Central District of California BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE NICHOLAS M. INZEO Acting Deputy General Counsel Philip B. SKLOVER Associate General Counsel Lorraine C. Davis Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7010 Washington, D.C. 20507 (202) 663-4791 TABLE OF CONTENTS Page STATEMENT OF JURISDICTION . . . . . . . . . 1 STATEMENT REGARDING ORAL ARGUMENT . . . . . . . 2 STATEMENT OF THE ISSUES . . . . . . . . . 2 STANDARD OF REVIEW . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . 3 1. Nature of the Case and Course of Proceedings . . 3 2. Statement of Facts . . . . . . . . 3 3. Decision Below . . . . . . . . . 6 SUMMARY OF ARGUMENT . . . . . . . . . . 8 ARGUMENT THE UNDISPUTED EVIDENCE ESTABLISHES THAT THE COMMISSION PROPERLY DENIED THIS FOIA REQUEST BECAUSE THE EEOC NEVER HAD THE DOCUMENT IN QUESTION IN ITS POSSESSION . 8 CONCLUSION . . . . . . . . . . . . 16 STATEMENT OF RELATED CASES . . . . . . . . 16 CERTIFICATE OF COMPLIANCE . . . . . . . . . 17 CERTIFICATE OF SERVICE . . . . . . . . . 17 TABLE OF AUTHORITIES Cases Page(s) Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325 (9th Cir. 1995) . . . . . . . 9 Hunt v. C.I.A., 981 F.2d 1116 (9th Cir. 1992) . . . . 13 John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989), reh. den. Jan. 22, 1990 . . . . . . . 8, 11, 12 Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136 (1980) . . . . . . . . 6, 9, 10 Klamath Water Users Protective Association v. U.S. Dept. of the Interior, 189 F.3d 1034 (9th Cir. 1999) . . 2 Pollard v. F.B.I., 705 F.2d 1151 (9th Cir. 1983) . . . . 14 Schiffer v. FBI, 78 F.3d 1405 (9th Cir. 1996) . . . . . 2 United States v. Studley, 783 F.2d 934 (9th Cir. 1986). . 3, 14 U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136 (1989) . . . . . . . . . . 9 Statutes Freedom of Information Act, 5 U.S.C. § 552 . . . . 1, 3 5 U.S.C. § 552(a)(4)(B) . . . . . . . . 1, 9, 14 5 U.S.C. § 552(b)(7)(A) . . . . . . . . 4, 5, 12 28 U.S.C. § 144 . . . . . . . . . . . . 14 28 U.S.C. § 455 . . . . . . . . . . . . 14 28 U.S.C. § 1291 . . . . . . . . . . . 1 42 U.S.C. § 1981a . . . . . . . . . . . 7 42 U.S.C. § 2000e et seq., . . . . . . . . . 4, 7 44 U.S.C. § 3301 . . . . . . . . . . . 4 Miscellaneous District Court General Order 194 . . . . . . . . 15 District Court General Order 224 . . . . . . . . 15 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 01-56653 STANLEY O. GAINES, JR., Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. On Appeal from the United States District Court for the Central District of California BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE STATEMENT OF JURISDICTION This is an appeal from a final judgment entered in an action brought under the Freedom of Information Act, 5 U.S.C. § 552. The district court had jurisdiction over this action under 5 U.S.C. § 552(a)(4)(B). This Court has jurisdiction under 28 U.S.C. § 1291. The district court entered final judgment on August 6, 2001. (R.46 Judgment, SER at 56) Plaintiff-appellant Gaines filed a notice of appeal on September 10, 2001. (R.51 Notice of Appeal, SER at 57-58) STATEMENT REGARDING ORAL ARGUMENT The Commission respectfully requests that 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 the decisional process. STATEMENT OF THE ISSUES Whether the undisputed evidence establishes that the EEOC was justified in denying Appellant's request under the Freedom of Information Act because the EEOC did not have at the time, and never has had, the requested document in its possession. Whether Appellant's request for recusal was properly denied. STANDARD OF REVIEW In an appeal from a grant of summary judgment in a FOIA case, this Court applies a two-step standard of review. Schiffer v. FBI, 78 F.3d 1405, 1409 (9th Cir. 1996). The Court, first, determines whether the district court had an adequate factual basis for its decision. If so, this Court will overturn the district court's factual findings underlying its decision only if clearly erroneous. Ibid. Where the district court's findings of fact effectively determine the legal conclusion, as is the case here, this Court applies the clearly erroneous standard to its review of the district court's final determination. See ibid.; see also Klamath Water Users Protective Association v. U.S. Dept. of the Interior, 189 F.3d 1034, 1036 (9th Cir. 1999). This Court reviews a denial of a motion for recusal for an abuse of discretion. United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings. This is an appeal from a final judgment of the United States District Court for the Central District of California. Gaines filed this action on November 16, 2000, alleging that the Equal Employment Opportunity Commission (EEOC or Commission) withheld records under its control in violation of the Freedom of Information Act (FOIA), 5 U.S.C. § 552. (R.1 Complaint, SER at 1) On March 26, 2001, the Commission filed a motion to dismiss or, in the alternative, for summary judgment. (R.22 EEOC's Motion to Dismiss or for Summary Judgment) On July 30, 2001, the district court granted the EEOC's motion for summary judgment and denied the EEOC's motion to dismiss as moot. (R.46 Judgment Granting Summary Judgment, SER at 56; R.45 Order Granting Summary Judgment at 9, SER at 55) Gaines filed a notice of appeal on September 10, 2001. (R.51 Notice of Appeal, SER at 57-58) 2. Statement of Facts. Gaines sent a letter dated July 28, 2000, to investigator Barbara J. Tucker of the EEOC's Los Angeles District Office (LADO) requesting a meeting pursuant to the Freedom of Information Act to inspect and copy “the negative Faculty Personnel Committee letter, from Fall 1998, in my personnel file.” (R.1 Complaint at 4, SER at 4) Gaines sent a similar letter dated July 29, 2000, to Pamela J. Thompson, who was then EEOC's Los Angeles Regional Attorney. (R.1 Complaint Exh. 7, SER at 9) Gaines sent an e-mail to Paralegal Angel Price on August 2, 2000, clarifying that the document he sought was contained in the investigative file for charge number 340991279. (R.41 Disclosure by Plaintiff Regarding Initial E-Mail Correspondence, SER at 41) At the time of Gaines's request, charge number 340991279 and three other charges Gaines had filed against Pomona College were all open and being administratively processed by EEOC's Los Angeles District Office.<1> (R.1 Complaint Exh. 8, SER at 10) By letter dated August 2, 2000, EEOC's LADO denied Gaines's FOIA request pursuant to FOIA exemption 7(A). (Ibid., SER at 10-11) Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), permits the EEOC to deny a request for materials from an open charge file being processed pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., where disclosure of file materials could reasonably be expected to interfere with EEOC's enforcement proceedings.<2> On August 8, 2000, Gaines sent a letter to the EEOC's Office of Legal Counsel appealing the LADO's denial of his FOIA request. (R.1 Complaint Exh. 9, SER at 12-15) By letter dated August 31, 2000, EEOC's Assistant Legal Counsel/ FOIA denied Gaines's appeal pursuant to FOIA exemption 7(A). (R.1 Complaint Exh. 10, SER at 16-19) Since Gaines had limited his original FOIA request to charge file number 3400991279, the appeal decision was limited to that file. (Ibid.) By letter dated September 19, 2000, EEOC notified Gaines that charge number 340991279 was now administratively closed.<3> (R.1 Complaint at 6, SER 6) On November 16, 2000, Gaines initiated this action by filing a complaint alleging that the Commission violated FOIA by failing to produce the requested document. (R.1 Complaint, SER at 1-8) After Gaines filed this suit, EEOC searched its records and determined that EEOC had never obtained a copy of the requested document. Instead, in response to EEOC's Request for Information during the investigation of Gaines's charges, Ronald C. Cohen, counsel to Pomona College, had advised the Commission that the college was withholding three categories of documents, including the written reports of the subcommittee of the Faculty Personnel Committee from 1995 and 1998. Pomona College had permitted the EEOC investigator to view these documents in the presence of the College's counsel, but the investigator had never received a copy of the Committee's reports. (R.19 Declaration of Barbara J. Tucker, SER at 21-22) Thus, the requested document had never became part of the EEOC investigation file for any of Gaines's charges against Pomona College. The EEOC thereafter moved to have Gaines's lawsuit dismissed or, in the alternative, for summary judgment on the grounds that the document requested was not an “agency record” because EEOC had never obtained it. (R.22 EEOC's Motion to Dismiss or for Summary Judgment) 3. Decision Below. On July 30, 2001, the district court granted the Commission's motion for summary judgment. Citing Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 151 (1980), the district court noted that “[a]gency possession or control [of the disputed record] is a prerequisite to triggering any duties under the FOIA.” (R.45 Order Granting Summary Judgment at 5, SER at 51) The court concluded that the Commission had successfully demonstrated that the document in question was not in the Commission's possession, and that Gaines had failed to show otherwise. (Id. at 6-7, SER at 52-53) The court rejected Gaines's argument that, “because EEOC has the power to subpoena documents from Pomona College, it should have used such power to obtain the disputed letter ....” The court held that the Commission's ability to compel production of a document by an employer does not mean that the Commission has done so or is required to do so. In light of the fact that Gaines had, in the meantime, filed a lawsuit against Pomona College alleging race discrimination,<4> the court observed: “In fact, plaintiff has the same subpoena power over Pomona College as the EEOC, and could require disclosure of the disputed document through that procedure, but has evidently not availed himself of it.” (Id. at 8, SER at 54) SUMMARY OF ARGUMENT The Freedom of Information Act requires a federal agency to produce only those non-exempt documents that the agency actually has in its possession. The undisputed evidence in this case shows that after Gaines initiated this FOIA action, the EEOC searched the files in its Los Angeles District Office and discovered that the document in question was not then, and never had been, in the Commission's possession. In granting the EEOC's motion for summary judgment, the district court properly recognized the adequacy of the Commission's evidence and the absence of any contrary evidence from Gaines to demonstrate that the Commission ever possessed this letter. In addition, the district court properly handled Gaines's Request for Recusal by treating it as a motion to disqualify and referring it to another district court judge. ARGUMENT THE UNDISPUTED EVIDENCE ESTABLISHES THAT THE COMMISSION PROPERLY DENIED THIS FOIA REQUEST BECAUSE THE EEOC NEVER HAD THE DOCUMENT IN QUESTION IN ITS POSSESSION. The Freedom of Information Act requires a federal agency to disclose non-exempt agency records in its possession. If the requested document does not fall within one of the Act's exemptions, the agency has a duty to disclose any responsive records that it has. See, e.g., John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52 (1989), reh. den. Jan. 22, 1990; Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995). The FOIA confers jurisdiction on district courts “to enjoin the agency from withholding agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B). The Supreme Court has held that federal jurisdiction in a FOIA case is dependent on a showing that an agency has (1) “improperly” (2) “withheld” (3) “agency records.” Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 150 (1980). Unless all three of these criteria are met, a district court does not have jurisdiction under FOIA to require an agency to disclose documents and records. Ibid.; U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989). EEOC has met its burden to establish that its denial of Gaines's FOIA request was justified here. In moving for summary judgment below, EEOC relied on the declarations of Barbara J. Tucker (R.19, SER at 20-22), A. Jacy Thurmond, Jr. (R.26, SER 23-25), Angel Ann Price (R.27, SER at 26-28), and Anna Y. Park (R.25). Together, these declarations demonstrate that EEOC never possessed the document in question. In particular, EEOC Investigator Barbara Tucker explained in her declaration that she was the investigator assigned to investigate charge number 340991279. In that capacity, Pomona College allowed Ms. Tucker to review the Faculty Personnel Committee's 1998 report, but did not supply a copy or permit Ms. Tucker to copy the report. (R.19 Tucker Declaration, SER at 21-22) Thus, EEOC never had control or possession of this document. As the district court properly noted below, the FOIA does not require an agency to obtain documents not already in its possession in order to satisfy a citizen's request. See Kissinger v. Reporter's Comm. for Freedom of the Press, 445 U.S. at 152. The Commission was, therefore, justified in denying Gaines's request. In his informal brief filed with this Court, Gaines identifies six issues he is raising on appeal, none of which have any merit. Specifically, Gaines asserts that: 1. “[T]he EEOC perjured itself by claiming that it had not received the Pomona College letter, after initially indicating that it had received the Pomona College letter.” 2. “Judge Snyder did not have an adequate factual basis for granting summary judgment to EEOC (e.g., Judge Snyder failed to conduct in camera review of EEOC files).” 3. “Judge Snyder illegally granted the EEOC immunity from the FOIA, as is evident from the transcript of the scheduling conference.” 4. “Judge Snyder's summary judgment ... shielded EEOC from Privacy Act of 1974.” 5. “Judge Snyder's refusal to acknowledge [Gaines's] Request for Recusal, apparently directing that it be re-labeled as a Motion to Disqualify, stands in violation of the United States Code.” 6. “The EEOC's communication with Judge Snyder outside the context of filed documents stands in violation of the Local Rules accompanying the FRCP.” With respect to the perjury issue, the EEOC never indicated that it had the document in question in its possession, so there is no factual basis for Gaines's assertion that EEOC contradicted itself during these proceedings. Although Gaines does not explain the factual basis for his assertion, he cites John Doe Agency v. John Doe Corp., supra, purportedly for the principle that “objects sought must have been compiled when the government invokes a FOIA exemption.” On this basis, it appears that Gaines may believe the Commission must have possessed the document at the time of his request because the agency originally denied his request under FOIA Exemption 7(A) rather than asserting at the outset that it did not have the document. EEOC's original denials of Gaines's FOIA request, both by the LADO (by letter dated August 2, 2000) and by EEOC's Assistant Legal Counsel/FOIA (by letter dated August 31, 2000), were based solely on the fact that charge file number 340991279 was still open at the time. (See R.27 Declaration of Angel Ann Price, SER at 27, and R.26 Declaration of A. Jacy Thurmond, Jr., SER at 24) FOIA Exemption 7(A) permits a law enforcement agency to deny a FOIA request for records and information compiled for law enforcement purposes where disclosure could reasonably be expected to interfere with enforcement proceedings. 5 U.S.C. § 552(b)(7)(A). EEOC asserted Exemption 7(A) in this instance without conducting any search for the record in question. Thus, EEOC's August 2 and 31, 2000, denials of Gaines's FOIA request in no way signified the presence of the requested document in the agency's files. Gaines's reference to John Doe Agency is unavailing. The Court in that case held that FOIA Section 7(A) can extend to documents that were originally compiled for another purpose, as long as they are being used for law enforcement purposes at the time the exemption is invoked. The decision addressed agency documents that were undisputably in the government's possession at the time of the request. The case does not stand for the principle that an agency can only invoke Section 7(A) if it first verifies that it has a particular, requested document in its possession. In the proceedings below, Gaines also asserted that an exchange of e-mail between Gaines and EEOC paralegal Angel Price from August 2 through August 4, 2000, demonstrated that EEOC had the document in question in its possession at the time of his request. (R.41 Disclosure by Plaintiff Regarding Initial E-Mail Correspondence, SER at 38) The district court properly found that there is no factual support for that assertion, since Ms. Price never stated in these e-mails that the requested document was in EEOC's possession. (R.45 Order Granting Summary Judgment at 6-7, SER at 52-53) Gaines's second issue on appeal – that Judge Snyder did not have an adequate factual basis for her decision because she failed to conduct an in camera review of EEOC files -- is also without merit. The detailed affidavits accompanying the EEOC's motion for summary judgment provided ample factual support for the district court's finding that EEOC never possessed the document in question, and the district court properly relied on these affidavits. See, e.g., Hunt v. C.I.A., 981 F.2d 1116, 1119 (9th Cir. 1992)(court must accord “substantial weight” to agency affidavits absent contradictions in the record or evidence of agency bad faith). Indeed, the only evidence Gaines proffered to counter the EEOC's affidavits was the e-mail correspondence he exchanged with paralegal Price. (R.41 Disclosure by Plaintiff Regarding Initial E-Mail Correspondence, SER at 37-46; Transcript of Proceedings on April 16, 2001 (Tr.) at 7-1 through -7, SER at 66) As noted above, the district court properly concluded that this evidence failed to raise a triable issue of material fact that might justify denial of summary judgment.<5> There is also no merit to the fifth issue in this appeal, Gaines's contention that Judge Snyder improperly handled his Request for Recusal. The standard for judicial disqualification is set forth in 28 U.S.C. §§ 144 and 455. Section 144 provides that a party may allege by affidavit that the judge has a personal bias against him or in favor of any adverse party. A judge should be disqualified from a case under section 455 if “a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). As Judge Kelleher concluded below, there is no basis on which a reasonable person with knowledge of all the facts would have reasonably questioned Judge Snyder's impartiality. (R.40 Order Denying Plaintiff's Motion to Disqualify District Judge, SER at 33-36) Moreover, Judge Snyder advised the parties at the outset of the telephonic status conference conducted on April 16, 2001, that she was not recusing herself from the case (Tr. at 4-22 to 5-10, SER at 63-64), and she properly referred Gaines's subsequent motion for disqualification to another district court judge for determination pursuant to the district court's General Orders 224 and 194. (R.38 Referral of Motion to Disqualify Judge, SER at 32; see also Tr. at 5-10 to -14, SER at 64) The Commission is unable to address Gaines's third, fourth and sixth issues because he fails to provide any explanation of these issues or any basis for his contentions. Therefore, we are unable to determine the nature of his arguments and/or the reasons he believes the district court erred. However, none of these issues appears to have any merit. In sum, the district court correctly concluded that the Commission did not have the disputed letter, and the court properly granted summary judgment to the Commission on this basis. CONCLUSION For the foregoing reasons, the judgment of the district court should be affirmed and the appeal dismissed. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7010 Washington, D.C. 20507 (202) 663-4791 STATEMENT OF RELATED CASES On November 17, 2000, Appellant Stanley Gaines filed a civil action against Pomona College alleging that Pomona College violated Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991, 42 U.S.C. §§ 1981a and 2000e et seq. Gaines v. Pomona College, 00-CV-12267 CAS. On July 2, 2001, Appellant Gaines filed a second civil action against Pomona College alleging employment discrimination. Gaines v. Pomona College, 01-CV-5799 CAS. The district court dismissed both actions by orders entered on November 19, 2001, following entry of a stipulation between Pomona College and the bankruptcy trustee for Gaines's bankruptcy estate. On December 14, 2001, Gaines filed a notice of appeal to this Court in both actions. Gaines v. Pomona College, No. 02-55004. SUSAN R. OXFORD 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 is a principal brief of no more than 30 pages. ___________________________________ Susan R. Oxford CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing Brief and one copy of the Supplemental Excerpts of Record were mailed, first class, postage prepaid, on this the 29th day of January, 2002, to the following pro se appellant: Stanley O. Gaines, Jr. 8 Eagle Road Wembley, Middlesex HA04SQ United Kingdom SUSAN R. OXFORD 1 A fifth charge that Gaines had filed against Pomona College, charge number 340980816, had already been administratively closed by the Commission and the documents in it destroyed pursuant to the Disposal of Records Act, 44 U.S.C. § 3301, at the time of this FOIA request. (R.1 Complaint Exh. 8, SER at 10) 2 Although Gaines e-mailed Ms. Price on August 2, 2000, to clarify that his FOIA request pertained only to charge file number 340991279, the LADO's August 2, 2000, response addressed all five of Gaines's discrimination charges against Pomona College. With respect to charge number 340980816, the EEOC responded that the request was neither granted nor denied because the investigation had been closed and the file destroyed pursuant to standard records retention policies. With respect to the other four charges, the EEOC denied the request pursuant to FOIA subsection 7(A) because all of these charges were still open at the time. (R.1 Complaint Exh. 8, SER 10) 3 The same notice advised Gaines that his three other pending charges against Pomona College were also now closed. 4 As the district court noted in footnote 1 of its Order Granting Summary Judgment, Gaines filed the complaint in Gaines v. Pomona College, CV 00-12267, on November 17, 2000, alleging that Pomona College violated Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991, 42 U.S.C. §§ 1981a and 2000e et seq., by intentionally discriminating against him on the basis of race when the college's psychology department denied Gaines tenure and a promotion on September 30, 1998. (R.45 Order Granting Summary Judgment at 1 n.1, SER at 47) 5 Since the district court found, as a matter of fact, that EEOC never possessed the document in question, there was no basis for the district court to conduct an in camera review. In camera review is appropriate when an agency has a document in its possession, but asserts that the document is exempt from disclosure in whole or in part, and the explanation provided by the agency is inadequate to determine whether the claimed exemption is proper, or when release of the agency's explanation would disclose the very information that the agency seeks to protect. See 5 U.S.C. § 552(a)(4)(B); Pollard v. F.B.I., 705 F.2d 1151, 1153-54 (9th Cir. 1983). Where, as in this case, the agency does not have the document in question, there is nothing for the district court to view in camera.