Table of Contents

Table of Authorities............................................................................ ii

Statement of the Issues...................................................................... 1

Statement of the Case......................................................................... 1

Statement of Facts..................................................................... 1

District Court Decision on Summary Judgment................ 10

Summary of the Argument.............................................................. 14

Argument............................................................................................ 15

I. The district court correctly concluded that the

Commission properly responded to Harper’s request for

information, and Harper has presented no argument to

the contrary on appeal....................................................... 15

II. This Court lacks jurisdiction to address Harper’s

argument challenging the district court’s dismissal

of the individual defendants from this suit, and even

if this Court had jurisdiction over that question, the

district court’s ruling was correct.................................... 25

Conclusion.......................................................................................... 30

Certificate of Compliance

Addendum - Designation of Relevant Documents

Certificate of Service

Table of Authorities

Cases Page(s)

Atkins v. U.S. Dep’t of Justice,

No. 90-5095, 1991 WL 185084

(D.C. Cir. Sept. 18, 1991)........................................................ 18

Batton v. Evers,

598 F.3d 169 (5th Cir. 2010).................................................. 27

Coastal States Gas Corp. v. Dep’t of Energy,

617 F.2d 854 (D.C. Cir. 1980)................................................ 23

Diamond v. F.B.I.,

707 F.2d 75 (2d Cir. 1983)...................................................... 28

Drake v. Obama,

664 F.3d 774 (9th Cir. 2011).................................................. 27

Ely v. U.S. Postal Serv.,

753 F.2d 163 (D.C. Cir. 1985)................................................ 20

Flaherty v. I.R.S.,

468 F. App’x 8 (D.C. Cir. 2012).............................................. 27

Gabrielli v. U.S. Dep’t of Justice,

594 F. Supp. 309 (N.D.N.Y. 1984)......................................... 28

Guy v. Lexington-Fayette Urban Cty. Gov’t,

57 F. App’x 217 (6th Cir. 2003)............................................. 25

Martinez v. Bureau of Prisons,

444 F.3d 620 (D.C. Cir. 2006)................................................ 27

Miller v. Admin. Office of Courts,

448 F.3d 887 (6th Cir. 2006).................................................. 17

NLRB v. Sears, Roebuck & Co.,

421 U.S. 132 (1975)................................................................. 22

Physician’s Comm. for Responsible Med. v. Dep’t of Health

& Human Servs., 480 F. Supp. 2d 119 (D.C. Cir. 2007)..... 20

Rugiero v. U.S. Dep’t of Justice,

257 F.3d 534 (6th Cir. 2001)........................................... 17, 23

Schell v. Dep’t of Health & Human Servs.,

843 F.2d 933 (6th Cir. 1988).................................................. 22

Tennessean Newspaper, Inc. v. FHA,

464 F.2d 657 (6th Cir. 1972).................................................. 22

U.S. v. Pritchett,

749 F.3d 417 (6th Cir. 2014).................................................. 16

Voinche v. F.B.I.,

999 F.2d 962 (5th Cir. 1993).................................................. 18

Williams v. F.B.I.,

730 F.3d 882 (2d Cir. 1984)................................................... 28

Statutes

5 U.S.C. § 551(1), (2)......................................................................... 26

5 U.S.C. § 552(a)(4)(A)(i)................................................................... 19

5 U.S.C. § 552(a)(4)(A)(iii).......................................................... 19, 20

5 U.S.C. § 552(a)(4)(B)...................................................................... 26

5 U.S.C. § 552(b)(1)-(9)...................................................................... 21

5 U.S.C. § 552(b)(5)....................................................................... 3, 21

5 U.S.C. § 552(f)(1)............................................................................ 26

28 U.S.C. § 1915(e)(2)......................................................................... 6

Rules and Regulations

Fed. R. App. P. 3(c)(1)(B).................................................................. 25

Fed. R. App. P. 28(a)......................................................................... 17

29 C.F.R. § 1610.14(a)................................................................ 19, 20

29 C.F.R. § 1610.15........................................................................... 19

29 C.F.R. § 1610.15(a)(3).................................................................. 19

29 C.F.R. § 1610.15(c)(3).............................................................. 2, 19

Statement of the Issues

I. Did the district court correctly grant summary judgment where there was no genuine dispute that the Commission satisfied its obligations under the Freedom of Information Act in response to Harper’s request for information?

II. Does this Court have jurisdiction to address Harper’s challenge to the district court’s earlier dismissal ruling, and if so, did the district court correctly conclude that because the Freedom of Information Act only provides a cause of action against a federal agency and not its officials or employees, the individuals named as defendants should be dismissed from the suit?

Statement of the Case

1. Statement of Facts

On May 4, 2015, Rodney Harper filed a Freedom of Information Act (“FOIA”) request with the Commission, seeking a copy of his Investigative Charge File. Declaration of Stephanie D. Garner (“Garner decl.”), ex. 1, R.23-2, PageID#99.[1] By letter dated May 11, 2015, the Commission acknowledged receipt of Harper’s FOIA request. Garner decl., ex. 2, R.23-2, PageID#102.

On May 19, 2015, the Commission issued its determination on Harper’s FOIA Request, granting it in part and denying it in part. Garner decl., ex. 3, R.23-2, PageID#104. The Commission’s letter to Harper explained that the Commission had identified 354 pages of responsive records, and that the first 100 pages were enclosed and provided free of charge. Id. The Commission further explained that as for the remaining 254 pages of responsive documents, photocopying is billed at $.15 per page, resulting in a cost of $38.70 for Harper to receive the remaining pages.[2] Id.; see also 29 C.F.R. § 1610.15(c)(3) (setting photocopying costs for FOIA requests). The Commission also provided Harper information on how to make payment for the remaining pages, as well as an invoice itemizing the photocopying cost. Garner decl., ex. 3, R.23-2, PageID#104-07.

The Commission further informed Harper that it had partially redacted two pages of the released documents, pursuant to FOIA’s Exemption 5.[3] Garner decl., ex. 3, R.23-2, PageID#104-06. The Commission explained the purpose of this exemption, and identified the withheld information as a portion of the Commission’s PCHP [(Priority Charge Handling Process)] Assessment Form and portions of the Commission’s Recommendation for Closure memorandum. Garner decl., ex. 3, R.23-2, PageID#105-06,109-10.

The Commission redacted the portions of the PCHP form that related to the charge processing category (A, B, or C) and the specific assignment factors justifying the investigator’s recommended charge processing category, which is itself based on the investigator’s initial review and evaluation of the charge and intake information. Garner decl., R.23-2, PageID#96. The Commission uses the charge categorization process to prioritize charges and determine how to proceed with an investigation, and the investigator’s categorization recommendation is subject to review by the investigator’s supervisor and legal unit within the Commission. Garner decl., R.23-2, PageID#96. The Commission withheld this information under Exemption 5 because it contains the investigator’s initial evaluation and categorization of the charge, which was generated to aid the investigator’s supervisor and legal unit in evaluating the charge and determining how to proceed with investigating the charge. Id.

As for the second redacted document—the Recommendation for Closure memorandum—the Commission redacted the investigator’s recommended dismissal/closure basis and analysis of the evidence in support of the recommendation. Garner decl., R.23-2, PageID#96. The memorandum itself indicates that it was addressed to the District Director, and was to be reviewed by the investigator’s supervisor. Id. The Commission withheld this information under Exemption 5 because the redacted sections contain the investigator’s recommended course of action on the charge and analysis of the evidence in support of the recommendation, generated for the purpose of aiding Commission decisionmakers in determining the ultimate disposition of the charge. Id.

In its determination, the Commission explained Harper’s administrative appeal rights. Garner decl., ex. 3, R.23-2, PageID#104. On June 24, 2015, Harper exercised those rights, appealing the initial determination of his FOIA request to the Commission and seeking release of the withheld documents. Garner decl., R.23-2, PageID#95. In a letter dated June 25, 2015, the Commission advised Harper that it would issue a determination on his request by July 23, 2015, provided him with contact information regarding the Commission’s processing of his appeal, and noted that if the Commission needed to extend the determination date, it would inform him prior to July 23. Garner decl., ex. 4, R.23-2, PageID#112. However, the Commission inadvertently closed Harper’s FOIA appeal without issuing a determination. Garner decl., R.23-2, PageID#95.

On September 23, 2015, Harper commenced the instant civil action against the Commission and a number of its officers and employees. Complaint, R.1, PageID#1. In his complaint, Harper alleged that the Commission and other defendants had violated FOIA by failing to make records available to him, and by failing to conduct a reasonable search for records that were responsive to his request. Complaint, R.1, PageID#4-5.

In connection with Harper’s preliminary request to the district court that he be granted leave to proceed in forma pauperis, the Magistrate Judge screened the complaint to ensure that it was not frivolous or malicious, that it did not fail to state a claim on which relief may be granted, and that it did not seek monetary relief against a defendant who is immune from such relief. Order and Recommendation, R.5, PageID#17-18; see also 28 U.S.C. § 1915(e)(2) (providing screening requirements for in forma pauperis complaints). The Magistrate Judge recommended that the court dismiss the action with prejudice as to the individually named defendants and that the action proceed solely against the Commission, because “FOIA only applies to agencies as defined in 5 U.S.C. § 552(f)(1) and there is no cognizable claim against any of the individuals listed as defendants.” Order and Recommendation, R.5, PageID#20.

On November 17, 2015, the district court adopted the Magistrate Judge’s recommendation in full. Order terminating parties, R.9, PageID#30-36. The court then issued a summons to the Commission to appear in the action. Summons, R.10, PageID#37. Harper subsequently filed an appeal from the November 17 ruling to this Court, which dismissed the appeal for lack of jurisdiction over the district court’s nonfinal order. Sixth Circuit Order, R.20, PageID#67-68.

The Commission received a copy of the summons and complaint on December 7, 2015. Garner decl., ex. 4a, R.23-2, PageID#114. Upon receipt, the Commission realized that Harper’s FOIA appeal had been inadvertently closed without the Commission having issued a determination. Garner decl., R.23-2, PageID#95. The Commission immediately reopened Harper’s FOIA Appeal, and on December 10, 2015, it issued its determination on the appeal. Garner decl., ex. 5, R.23-2, PageID#116. The Commission partially affirmed and partially reversed its initial determination as to Harper’s FOIA request, releasing an additional 85 words contained in the Recommendation for Closure memorandum.[4] Garner decl., ex. 5, R.23-2, PageID#117-25. Nevertheless, as Harper still had not paid the photocopying costs for the remaining 254 pages of documents responsive to his FOIA request, the Commission did not provide Harper with photocopies of the remaining requested documents.

On February 5, 2016, the Commission filed its motion to dismiss or, in the alternative, for summary judgment. Motion, R.23, PageID#77. The Commission argued that Harper’s claim that the Commission had failed timely to respond to his FOIA appeal had been rendered moot by the Commission’s December 10, 2015, determination on Harper’s FOIA appeal; that the requested documents are available to Harper but have not been released because he has not paid the duplication fee; and that the Commission properly withheld the redacted information pursuant to Exemption 5. Memorandum, R.23-1, PageID#80-81. In support, the Commission submitted the declaration of Stephanie D. Garner, Assistant Legal Counsel for the Commission’s FOIA Programs, as well as a “Vaughn Index” describing for the court the two documents that were responsive to Harper’s request but that required redaction, as well as the reason for the necessary redaction. Memorandum, R.23, PageID#81; Garner decl., R.23-2, PageID#127.

The Magistrate Judge reviewed the Commission’s motion and Harper’s response, and recommended that the court grant the Commission’s motion. Report and Recommendation (“Report”), R.37, PageID#223. The Magistrate Judge first observed that Harper had failed to file a response to the Commission’s statement of material facts that was in compliance with either Federal Rule of Civil Procedure 56(c) or Local Rule 56.1(b), resulting in the Commission’s statement of material facts “being deemed undisputed for the purposes of the motion.” Report, R.37, PageID#219. The Magistrate Judge then recommended that dismissal was proper because “the matter is moot” as the Commission “has made available to [Harper] the documents in [his] investigative charge file . . . subject to legally permissible exceptions and the copying charge.” Report, R.37, PageID#221. The Magistrate Judge noted that Harper “has only not received the remaining 254 [pages] because he has not paid the copying fee.” Report, R.37, PageID#222. The Magistrate Judge also noted that “[t]he only information not released is described in the Vaughn index” and concluded that “the redacted information is properly withheld pursuant to 5 U.S.C. § 552(b)(5).” Report, R.37, PageID#222. The Magistrate Judge stated that the documents containing redactions were “clearly inter-agency memoranda as described by [FOIA],” and added that Harper “does not assert in his complaint or his response to the instant motion that [the Commission] has acted in bad faith.” Report, R.37, PageID#223.

2. District Court Decision on Summary Judgment

The district court adopted the Magistrate Judge’s recommendation to grant the Commission’s motion for summary judgment. Order, R.41, PageID#270. The court first adopted the Magistrate Judge’s recommended findings of fact, observing that Harper’s challenge to that recommendation was mainly focused on the Magistrate Judge’s conclusion that Harper had failed to comply with Federal Rule of Civil Procedure 56(c) and Local Rule 56.1(b) by not responding to the Commission’s statement of undisputed facts. Order, R.41, PageID#273. The court agreed with the Magistrate Judge’s conclusion, recognizing that Harper “clearly failed to comply” with these rules and that despite his pro se status, “[t]he record in the case shows that [Harper] was very familiar” with these rules, citing Rule 56 and Local Rule 56.1 “exhaustively” in his papers before the court. Order, R.41, PageID#274-75.

The court further concluded that Harper “cited little or no evidence” in support of his claim that there existed a genuine issue of fact. Order, R.41, PageID#275. The court held that Harper’s “blanket plea for discovery,” offered without identifying “what material facts he hoped to uncover or why the facts would establish a genuine dispute for trial,” was insufficient to meet the requirements of Rule 56(d). Order, R.41, PageID#277. The court added that the Magistrate Judge had recognized that “‘district courts typically dispose of FOIA cases on summary judgment before a plaintiff can conduct discovery,’” described the process for doing so, and then concluded that Harper had failed to show how such an approach, undertaken “in accordance with the procedure recognized by the Sixth Circuit,” would be inappropriate here. Order, R.41, PageID#278. The court also noted that while Harper “raised several other factual claims about his FOIA request,” none of those facts were material to the issues presented in the Commission’s motion for summary judgment. Order, R.41, PageID#278-79.

Turning to the substance of the Commission’s motion, the court recognized that the Magistrate Judge’s recommendation “rest[ed] on two proposed conclusions: (1) that [Harper’s] FOIA claim is now moot, and relatedly (2) that [the Commission] has complied with its duties under FOIA.” Order, R.41, PageID#280. The court characterized Harper’s brief, viewed in a light most favorable to him, as including “relatively few contentions addressed to the questions of law presented in the Motion for Summary Judgment,” and noted that “almost none of [Harper’s] statements constitute clear and specific legal objections.” Order, R.41, PageID#280. Instead, the court observed, Harper’s brief “taken as a whole . . . amounts to a general objection” to the Magistrate Judge’s recommendation. Order, R.41, PageID#280. As such, the court concluded that Harper had “largely failed to present specific objections to the Magistrate Judge’s legal conclusions.” Order, R.41, PageID#281.

The court stated that “[t]he only particularized objections the court can glean from [Harper’s] brief fail to show why the Court should reject the Magistrate Judge’s recommendations.” Order, R.41, PageID#281. First, the court noted that Harper had claimed that “he had not received the opposition statement from the EEOC as required by law,” but he failed to provide any further detail or explanation as to why this assertion should preclude summary judgment. Order, R.41, PageID#281.

Second, the court found that Harper had “misstat[ed] the evidence” with his only objection to the Garner declaration—that it did not “state a reason why the agency did not answer [Harper’s] FOIA request within the 20 days’ time period as required by law.” Order, R.41, PageID#281. The court observed that the Garner declaration explained that on June 24, 2015, Harper had administratively appealed the Commission’s initial determination on his FOIA request; that he filed suit on September 23, 2015, when the Commission had not rendered a decision on the appeal; and that in December 2015, when the Commission received the summons in Harper’s suit, it “realized ‘it had inadvertently closed [Harper’s] appeal without issuing a determination and immediately reopened and processed [Harper’s] FOIA appeal.’” Order, R.41, PageID#282. The court concluded that “nothing in [Harper’s] objections has shown why the court should reject” the Magistrate Judge’s conclusion that “there was no further relief for the Court to grant [Harper].” Order, R.41, PageID#282.

On July 26, 2016, Harper filed his notice of appeal, stating that he was appealing from the court’s order on the Commission’s motion for summary judgment. Notice of Appeal, R.43, PageID#284.

Summary of the Argument

As the district court correctly concluded, there exists no genuine dispute that the Commission has fully discharged its obligations under FOIA in response to Harper’s request for information. The Commission informed Harper that it had discovered 354 pages of documents responsive to his FOIA request; the Commission provided him the first 100 pages free of charge; consistent with its FOIA regulations, the Commission made the remaining 254 pages of documents available to him upon his payment of the estimated $38.70 in photocopying costs; and the Commission redacted information that is exempt from disclosure under FOIA’s Exemption 5. The Commission also fully processed Harper’s administrative appeal of the Commission’s initial FOIA determination.

Harper has presented no argument on appeal challenging the district court’s summary judgment ruling. He has instead challenged the district court’s prior order dismissing the individually named defendants. However, Harper did not properly appeal from that ruling, thereby depriving this Court of jurisdiction to hear his argument on that issue.

Even if this Court had jurisdiction over the dismissal order, every court of appeals to have addressed the question has concluded, as the district court did in this case, that FOIA does not provide a cause of action against individuals, and that the proper defendant in a FOIA action is the agency, not its officers or employees. Moreover, even if the district court’s dismissal of the individual defendants had been improper, any error would be harmless because Harper does not dispute in this appeal that the Commission satisfied its obligations under FOIA in regard to his request for information, and that he has been provided everything to which he is entitled under the statute.

Argument

I. The district court correctly concluded that the Commission properly responded to Harper’s request for information, and Harper has presented no argument to the contrary on appeal.

Harper has appealed from the district court’s grant of summary judgment to the Commission, in which the court concluded that no genuine dispute existed over whether the Commission satisfied its obligations under FOIA when it identified 354 pages of documents responsive to Harper’s request for information; provided him with the first 100 pages free of charge; informed him that copies of the remaining 254 pages were available for a photocopying fee of $.15 per page; and redacted sections of two pages pursuant to Exemption 5.

In his brief on appeal, however, Harper has offered no argument challenging the district court’s summary judgment ruling. See generally Brief of Appellant (“AtBr.”) at 1-6. Instead of challenging the district court’s ruling on summary judgment—the matter he identified in his notice of appeal, Notice of Appeal, R.43, PageID#284—Harper challenges the district court’s earlier order dismissing from the suit the individually named defendants. See AtBr. at 1-6. That order, which was issued before the Commission had even been served a summons in this case (see Order terminating parties, R.9, PageID#30; Summons, R.10, PageID#37), was the subject of his previously dismissed appeal to this Court.

As a result of his failure to challenge in his brief the district court’s summary judgment ruling, Harper has waived any such challenge. See, e.g., U.S. v. Pritchett, 749 F.3d 417, 434 (6th Cir. 2014) (observing “[w]e have held that an issue is waived when it is not raised in the appellant’s opening brief,” subject to exceptions not present here) (citing Miller v. Admin. Office of Courts, 448 F.3d 887, 893 (6th Cir. 2006); Fed. R. App. P. 28(a)). In the absence of any challenge to the grant of summary judgment to the Commission, and the absence of any meaningful effect on this litigation even if Harper were to prevail on the individuals-as-defendants argument that he does present on appeal, the Commission respectfully requests that this Court summarily affirm the district court’s ruling.

Regardless of Harper’s failure to challenge the summary judgment ruling, that ruling was correct. This Court has long endorsed the use of summary judgment in the context of FOIA cases. See, e.g., Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 544 (6th Cir. 2001). In a FOIA case, the district court may award summary judgment solely on the basis of information provided by the agency in affidavits or declarations, which are entitled to a presumption of good faith. Rugiero, 257 F.3d at 544. Accordingly, if the government fairly describes the content of the material withheld and adequately states its grounds for non-disclosure, and if those grounds are reasonable and consistent with the applicable law, the district court should uphold the government’s position.

Here, the district court’s grant of summary judgment to the Commission was appropriate, as the Commission fulfilled its obligations under FOIA and there exists no genuine issue as to any fact material to that question. First, the district court correctly adopted the Magistrate Judge’s conclusion that Harper’s timeliness argument was rendered moot by the Commission’s December 10, 2015, determination on his FOIA appeal. Once an agency has issued a determination on a FOIA request, a claim regarding the timeliness of that determination no longer presents a live case or controversy and is moot. Voinche v. F.B.I., 999 F.2d 962, 963 (5th Cir. 1993) (challenge to the tardiness of the agency’s response rendered moot by the agency response to the request); Atkins v. U.S. Dep’t of Justice, No. 90-5095, 1991 WL 185084, at *1 (D.C. Cir. Sept. 18, 1991) (unpubl.) (whether agency has complied with FOIA’s time limit in responding to plaintiff’s request is moot because the agency ultimately responded to the request). Harper has presented no argument to the contrary.

Second, the district court was correct to adopt the Magistrate Judge’s recommendation that the Commission satisfied its obligations under FOIA and made available to Harper all the information to which he was entitled. FOIA requires agencies to promulgate regulations “specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced.” 5 U.S.C.

§ 552(a)(4)(A)(i). The Commission’s FOIA regulations authorize it to charge fees to cover certain costs associated with processing FOIA requests. 29 C.F.R. § 1610.15. Photocopy fees, billed at $.15 per page, are to be assessed after the first 100 pages are provided to the requester free of charge. 29 C.F.R. § 1610.15(a)(3), (c)(3).

FOIA provides that fees should be waived or reduced “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii); see also 29 C.F.R. § 1610.14(a) (EEOC’s regulations governing fee waivers/reductions). FOIA does not, however, provide that fees may be reduced or waived on account of the requester’s indigency. 5 U.S.C. § 552(a)(4)(A)(iii); 29 C.F.R. § 1610.14(a); Ely v. U.S. Postal Serv., 753 F.2d 163, 165 (D.C. Cir. 1985) (per curiam) (noting there is no provision in FOIA for reduced fees or waiver of fees based on indigence, as “Congress rejected a fee waiver provision for indigents”).

In accordance with its regulations, the Commission provided Harper with the first 100 pages of responsive documents at no cost. Garner decl., R.23-2, PageID#94. The Commission advised Harper of the estimated fee of $38.70 for copying the remaining 254 pages of responsive documents, and requested advance payment of the fee. Garner decl., ex. 3, PageID#104-07. Harper has not paid the duplication fee and, accordingly, the Commission has not released the remaining 254 pages of responsive documents. Garner decl., R.23-2, PageID#94. Upon payment of the duplication fee, the Commission is prepared to release the remaining pages to Harper.

To the extent Harper argued that he was entitled to a waiver of the duplication fee, he is incorrect. Harper has not and cannot meet his burden of demonstrating entitlement to a waiver. See Physician’s Comm. for Responsible Med. v. Dep’t of Health & Human Servs., 480 F. Supp. 2d 119, 123 (D.C. Cir. 2007) (observing that the “requester seeking a fee waiver bears the initial burden” of satisfying the fee waiver requirements, and “‘conclusory statements . . . are not sufficient’ to meet the requester’s burden of showing that the fee waiver requirements are met”) (citations omitted). The records he sought—the contents of his Investigative Charge File—pertain to Harper, will primarily serve his own personal interests, and will not significantly contribute to the public’s understanding of the government’s operations or activities, as required by FOIA to receive a reduction or waiver of fees. Harper has presented no argument on appeal to the contrary.

Third, the district court was correct to adopt the Magistrate Judge’s recommendation that the Commission properly withheld certain information pursuant to Exemption 5. FOIA requires that federal records be made available to any member of the public, subject to nine broad exemptions. 5 U.S.C. § 552(b)(1)-(9). The fifth of these nine exemptions—Exemption 5—protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). Courts have long construed Exemption 5 to mean that an agency is permitted to withhold information associated with its deliberative or decisionmaking process. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (quoting Tennessean Newspaper, Inc. v. FHA, 464 F.2d 657, 660 (6th Cir. 1972)).

The deliberative process privilege embodied in Exemption 5 serves a number of purposes, among which are the protection of subordinates’ willingness to provide decisionmakers with frank opinions and recommendations; the prevention of the premature disclosure of proposed policies before they have been finally formulated or adopted; and avoiding public confusion caused by disseminating information suggesting reasons and rationales that may not be the agency’s final reasons or rationales. Schell v. Dep’t of Health & Human Servs., 843 F.2d 933, 939 (6th Cir. 1988) (citation omitted).

To come within Exemption 5 on the basis of the deliberative process, a document must be both “predecisional,” meaning it is “received by the decision maker on the subject of the decision prior to the time the decision is made,” and “deliberative,” “reflect[ing] the give-and-take of the consultative process.” Id. at 940 (citations omitted). “The key issue in applying this exemption is whether the disclosure of the materials would ‘expose an agency’s decision making process in such a way as to discourage discussion within the agency and thereby undermine the agency’s ability to perform its functions.’” Rugiero, 257 F.3d at 550 (citation omitted). In determining whether a document is predecisional, courts also look to the identities of the author and recipient of the government records at issue. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). “A document from a subordinate to a superior official is more likely to be predecisional, while a document moving in the opposite direction is more likely to contain instructions to staff explaining the reasons for a decision already made.” Id.

As detailed in the Garner declaration, the Commission withheld information contained in the PCHP Assessment Form and the Recommendation for Closure memorandum because the withheld information was “predecisional” and “deliberative” and thereby exempt from disclosure under Exemption 5. PageID#95-96. Specifically, the Commission redacted from the PCHP Assessment Form the charge processing category (A, B, or C) and the specific assignment factors justifying the investigator’s recommended charge assignment category—a recommendation based on the investigator’s initial review and evaluation of the charge and intake information. Garner decl. R.23-2, PageID#96. The Commission prioritizes charges into one of three categories (A, B, or C) for the purpose of determining how to proceed with the investigation of the charge. Garner decl. R.23-2, PageID#96. As indicated on the PCHP Assessment Form, the investigator’s recommendation was subject to the review of the Investigator’s supervisor and the legal unit. Garner decl. R.23-2, PageID#96; Garner decl., ex. 3, R.23-2, PageID#109.

With respect to the Recommendation for Closure memorandum, the Commission redacted the investigator’s recommended dismissal/closure basis and analysis of the evidence in support of the recommendation. Garner decl. R.23-2, PageID#96; Garner decl., ex. 3, R.23-2, PageID#110. As indicated on the memorandum, the investigator’s recommendation was addressed to the District Director. Garner decl. R.23-2, PageID#96; Garner decl., ex. 3, R.23-2, PageID#110. The recommendation was also to be reviewed by an immediate superior. Garner decl. R.23-2, PageID#96.

In sum, the information withheld contained the analysis, opinions, and recommendations of subordinate Commission personnel, generated for the purpose of aiding agency decisionmakers in determining how to proceed with the investigation and disposition of the charge. Therefore, the redacted information was properly withheld pursuant to the deliberative process privilege under Exemption 5. And again, Harper has presented no argument challenging the Commission’s decision to withhold this information.

II. This Court lacks jurisdiction to address Harper’s argument challenging the district court’s dismissal of the individual defendants from this suit, and even if this Court had jurisdiction over that question, the district court’s ruling was correct.

Harper’s notice of appeal identified only the district court’s order granting summary judgment to the Commission as the subject of the present appeal. Notice of Appeal, R.43, PageID#284. As a result, this Court lacks jurisdiction to address Harper’s argument in his brief on appeal that the district court erred in its separate, earlier order dismissing from the suit individuals named as defendants. See Fed. R. App. P. 3(c)(1)(B) (notice of appeal must “designate the judgment, order, or part thereof being appealed”); Guy v. Lexington-Fayette Urban Cty. Gov’t, 57 F. App’x 217, 223 (6th Cir. 2003) (unpubl.) (“Rule 3(c)(1)(B) requires designation of the order from which an appeal is taken. Rule 3(c) is jurisdictional and may not be waived by the court of appeals.”).

Nevertheless, should this Court decide it has jurisdiction to address Harper’s argument as to the dismissal of the individual defendants, the Court should affirm the district court’s dismissal ruling. The district court was correct to dismiss the individually-named defendants from this suit because there exists no cause of action against them under FOIA.

FOIA provides that “[o]n complaint, the district court of the United States in the district in which the complainant resides . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B) (emphasis added). By its plain terms, FOIA only authorizes complainants to bring suit against agencies, not individuals. Id.; see also 5 U.S.C. § 551(1), (2) (defining “agency” to include, subject to exceptions, “each authority of the Government of the United States,” and separately defining “person” to include “an individual, partnership, corporation, association, or public or private organization other than an agency”); 5 U.S.C. § 552(f)(1) (“For purposes of this section, the term—(1) ‘agency’ as defined in section 551(1) of this title includes any executive department . . . or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency . . . .”).

Accordingly, when a plaintiff brings suit under FOIA against individuals, district courts should “dismiss[] the individual defendants from the case and substitute[] the [agency] as the sole defendant, because [FOIA] only authorizes suits against certain executive branch ‘agencies,’ not individuals.” Flaherty v. I.R.S., 468 F. App’x 8, 9 (D.C. Cir. 2012) (citing 5 U.S.C. § 552(f)(1)); Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006)); see also, e.g., Drake v. Obama, 664 F.3d 774, 785-86 (9th Cir. 2011) (same) (citing cases); Batton v. Evers, 598 F.3d 169, 173 (5th Cir. 2010) (same).

The Commission is not aware of any circuit court of appeals that has squarely addressed the question and taken a contrary position. Harper’s arguments on appeal on this point are both incorrect and beside the point, because the district court’s ruling in favor of the Commission as to the merits of Harper’s FOIA suit applies with equal force regardless of whether the suit was to proceed against the Commission solely or its officers and employees individually.

Harper relies on an out-of-circuit district court decision from 1984 in support of his contention that dismissal of the individual defendants was improper. AtBr.4-5 (citing Gabrielli v. U.S. Dep’t of Justice, 594 F. Supp. 309 (N.D.N.Y. 1984)). Not only is that nonprecedential decision inconsistent with how the courts of appeals have resolved the question, but it is factually distinguishable in that it involved a suit against the head of the FBI, not lower-level staff or employees. See Gabrielli, 594 F. Supp. at 311 (in FOIA action, concluding that the head of the FBI was a proper party). The district court in Gabrielli opined that it “appear[ed]” that in the Second Circuit “the rule” was to permit FOIA actions against individual defendants. See id. at 311 (citing Williams v. F.B.I., 730 F.3d 882 (2d Cir. 1984); Diamond v. F.B.I., 707 F.2d 75 (2d Cir. 1983)). However, the authority cited as support in Gabrielli did not directly address the question at issue here. See Williams, 730 F.2d at 882-86 (no discussion of whether individuals were properly named as defendants); Diamond, 707 F.2d at 76-79 (same). The district court was correct to follow the reasoning of every court of appeals to have addressed the question—not to mention the plain language of the statute—when it dismissed the individually named defendants from Harper’s FOIA suit and concluded the Commission was the proper defendant.

Even if the district court’s dismissal of the individual defendants were improper, any such error would be harmless because of the demonstrated lack of merit to Harper’s FOIA claims. As described above—and, again, as Harper has failed to challenge on appeal—the district court correctly determined that there exists no genuine issue as to whether the Commission satisfied its obligations under FOIA in regard to Harper’s request for information. See supra, at 15-24. Harper has received everything to which he is entitled under FOIA in response to his request for information, and he has presented no argument to the contrary on appeal. The only reason Harper has not yet received the last 254 pages of responsive documents to which he is entitled is because he has refused to pay the required photocopying charges. Once he does, the Commission is prepared to release those documents to him.

Conclusion

For the foregoing reasons, the Commission respectfully requests that this Court summarily affirm the district court’s grant of summary judgment to the Commission.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN Associate General Counsel

MARGO PAVE

Assistant General Counsel

/s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

[1] Stephanie D. Garner is the Assistant Legal Counsel for FOIA Programs at the Commission. Garner decl., R.23-2, PageID#93.

[2] While Harper did not contest the Commission’s calculation of the estimated photocopying cost, we note that the Commission reached an incorrect copy fee estimate of $38.70, rather than $38.10. Garner decl., ex. 3, R.23-2, PageID#104, 107. Accordingly, Harper need only pay $38.10 in photocopying charges to receive copies of the remaining responsive documents.

[3] Exemption 5 provides in relevant part that FOIA’s disclosure requirements do not apply to “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.

§ 552(b)(5).

[4] On January 7, 2016, the Commission issued Harper an amended determination on his FOIA appeal, to correct a reference to the number of pages comprising the Recommendation for Closure memorandum and a typographical error in the referenced charge number, and to mark the box in the text indicating Harper’s right to file suit in federal district court if he was dissatisfied with the Commission’s determination. Garner decl., ex. 5, R.23-2, PageID#121.