Carlos Marino v. DEA

Filing

OPINION filed [1383475] (Pages: 11) for the Court by Judge Griffith [10-5354]

USCA Case #10-5354

Document #1383475

Filed: 07/13/2012

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 14, 2012

Decided July 13, 2012
No. 10-5354
CARLOS MARINO,
APPELLANT
v.

DRUG ENFORCEMENT ADMINISTRATION, AS A COMPONENT OF
THE DEPARTMENT OF JUSTICE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-01255)

P. Sebastian Ruiz, Student Counsel, argued the cause as
amicus curiae in support of appellant. With him on the briefs
were Steven H. Goldblatt, appointed by the court, Doug Keller
and Nilam A. Sanghvi, Supervisory Attorneys, and Zach Perez,
Student Counsel.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: SENTELLE, Chief Judge, BROWN and GRIFFITH,
Circuit Judges.

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Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: The district court entered summary
judgment against Carlos Marino on his claim brought under the
Freedom of Information Act. Before us is Marino’s appeal of the
district court’s denial of his motion to reconsider that decision.
For the reasons set forth below, we reverse and remand for the
district court to take up again Marino’s motion.
I
Carlos Marino is currently incarcerated for a 1997
conviction for drug conspiracy. In 2004, he submitted a request
to the Drug Enforcement Administration (DEA) under the
Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking all
documents indexed under number 3049901 of the DEA’s
Narcotics and Dangerous Drug Information System (NADDIS)
that were “already public information or [were] required to be
made public” in two criminal trials from 1997 and 1998. Letter
from Carlos Marino to FOIA Operations Unit, Drug
Enforcement Admin. (May 4, 2004). Marino alleges in these
proceedings that NADDIS No. 3049901 belongs to Jose Everth
Lopez, a co-conspirator who testified against him at trial.
Marino suspects the prosecution engaged in various forms of
misconduct during trial, especially in its dealings with Lopez.
The DEA denied Marino’s FOIA request, issuing a Glomar
response 1 “neither confirm[ing] nor den[ying] the existence of
1

A Glomar response is “an exception to the general rule that
agencies must acknowledge the existence of information responsive to
a FOIA request and provide specific, non-conclusory justifications for
withholding that information.” Roth v. U.S. Dep’t of Justice, 642 F.3d
1161, 1178 (D.C. Cir. 2011). Agencies may invoke a Glomar response
“only when confirming or denying the existence of records would itself

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any requested records.” Letter from Katherine E. Myrick, Chief,
Operations Unit of FOI/Records Mgmt. Section, Drug
Enforcement Admin., to Carlos Marino (Aug. 13, 2004).
Invoking FOIA exemption 7(C), which allows an agency to
withhold “information compiled for law enforcement purposes”
if disclosure “could reasonably be expected to constitute an
unwarranted invasion of personal privacy,” 5 U.S.C.
§ 552(b)(7)(C), the DEA stated that “to confirm the existence of
law enforcement records or information about another person is
considered an unwarranted invasion of personal privacy.” Letter
from Katherine E. Myrick to Carlos Marino, supra.
After an unsuccessful administrative appeal, Marino filed a
complaint in the district court that rested on two theories. First,
he maintained that most of the information he sought had
already been disclosed publicly and must therefore be released
under FOIA’s “public domain” exception. Second, he claimed
that the public interest in revealing the government misconduct
he alleged outweighed the personal privacy interests the DEA
had interposed. The DEA moved for summary judgment, relying
again on exemption 7(C). Despite asking for and receiving three
extensions of time to respond, Marino’s counsel never did. Two
months after the final extended deadline, the district court

‘cause harm cognizable under an FOIA exception.’” Id. (quoting Wolf
v. Cent. Intelligence Agency, 473 F.3d 370, 374 (D.C. Cir. 2007)); see
also Moore v. Bush, 601 F. Supp. 2d 6, 14 n.6 (D.D.C. 2009) (“The
‘Glomar’ response is named after the ship involved in Phillipi v. Cent.
Intelligence Agency, 546 F.2d 1009, 1011 (D.C. Cir. 1976). In that
case, the FOIA requester sought information regarding a ship named
the ‘Hughes Glomar Explorer,’ and the CIA refused to confirm or deny
whether it had any relationship with the vessel because to do so would
compromise national security or would divulge intelligence sources
and methods.”).

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concluded that Marino had effectively conceded the arguments
in the DEA motion and granted summary judgment against him.
Soon after, Marino’s attorney filed a motion for
reconsideration. He asked that the court not charge Marino with
his mistake, which he attributed to losing the draft response in
his office and the difficulty of communicating with an
imprisoned client. The motion remained pending for over two
years before Marino — this time proceeding pro se — filed a
motion for relief from judgment pursuant to Rule 60(b) of the
Federal Rules of Civil Procedure. Marino offered a number of
reasons he thought the court should revisit its decision. As
relevant to this appeal, he blamed the failure to file a response
on his “grossly negligent” attorney. The district court denied the
motion for reconsideration and the Rule 60(b) motion in the
same decision, concluding that granting either of them would be
futile because Marino lacked a sufficient defense to the DEA’s
summary judgment motion. Marino v. Drug Enforcement
Admin., 729 F. Supp. 2d 237 (D.D.C. 2010). Marino filed a
timely notice of appeal, and we appointed amicus curiae to argue
on his behalf. Through amicus, Marino challenges the district
court decision only to the extent it addresses his argument under
Rule 60(b)(6). We have jurisdiction to consider this appeal
under 28 U.S.C. § 1291.
II
Federal Rules of Civil Procedure Rule 60(b)(6) grants a
district court discretion to “relieve a party . . . from a final
judgment” for “any other reason that justifies relief.” This catchall provision has been interpreted to apply when a party
demonstrates “extraordinary circumstances,” see Pioneer Inv.
Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 393 (1993)
(internal quotation marks omitted), which can include gross

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attorney negligence, see Jackson v. Wash. Monthly Co., 569 F.2d
119, 122 (D.C. Cir. 1978). A party seeking relief must also meet
a threshold timeliness requirement, FED. R. CIV. P. 60(c)(1), and
show that it has “a meritorious claim or defense to the motion
upon which the district court dismissed the complaint,” Murray
v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995)
(quoting Lepkowski v. U.S. Dep’t of Treasury, 804 F.2d 1310,
1314 (D.C. Cir. 1986)) (internal quotation mark omitted).
Although we review a district court’s denial of a Rule 60(b)
motion for abuse of discretion, Computer Prof’ls for Soc.
Responsibility v. U.S. Secret Serv., 72 F.3d 897, 903 (D.C. Cir.
1996), we must consider underlying legal issues de novo, see
Davis v. Dep’t of Justice, 460 F.3d 92, 97 (D.C. Cir. 2006). If
the district court’s decision to deny relief under Rule 60(b) was
“rooted in an error of law,” we must remand for the court to
consider anew whether to exercise its discretion under the
correct legal standard. See Computer Prof’ls for Soc.
Responsibility, 72 F.3d at 903 (quoting Twelve John Does v.
District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988)).
The district court denied Marino’s motion based solely on
its determination that he failed to assert a meritorious defense to
the arguments the DEA raised at summary judgment. Marino,
729 F. Supp. 2d at 245. The limited scope of the district court
decision defines both the narrow issue before us and the modest
relief sought. We have no occasion to judge whether Marino
meets Rule 60(b)(6)’s other prerequisites for relief, or if he has
whether the district court would nonetheless be within its
discretion to deny the motion. We conclude only that Marino has
raised a meritorious defense, which entitles him to have the
district court look again at his motion, but not necessarily to
grant it.

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To clear the “meritorious defense” hurdle, Marino need only
provide “reason to believe that vacating the judgment will not be
an empty exercise or a futile gesture.” Murray, 52 F.3d at 355.
This is not a high bar. A meritorious defense is not measured by
“[l]ikelihood of success,” but by whether it “contain[s] ‘even a
hint of a suggestion’ which, proven at trial, would constitute a
complete defense.” Keegel v. Key West & Caribbean Trading
Co., 627 F.2d 372, 374 (D.C. Cir. 1980) (quoting Moldwood
Corp. v. Stutts, 410 F.2d 351, 352 (5th Cir. 1969)). Because a
genuine dispute over material facts defeats a motion for
summary judgment, see FED. R. CIV. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986), Marino can show a
“meritorious defense” with only a hint of a suggestion that key
facts in the record aren’t yet entirely clear.
Central to Marino’s case is his allegation that the
information he seeks has already been publicly disclosed. And
the facts about that, he asserts, are in dispute. Under FOIA’s
“public domain” exception, an agency may not rely on an
“otherwise valid [FOIA] exemption to justify withholding
information that is already in the ‘public domain.’” Students
Against Genocide v. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir.
2001); see also Niagara Mohawk Power Corp. v. U.S. Dep’t of
Energy, 169 F.3d 16, 19 (D.C. Cir. 1999) (explaining the
exception’s rationale that once information has become public,
any damage the agency fears from disclosure has already been
done). Marino attached to his complaint over 500 pages of
exhibits and claimed that there is evidence among them to show
that the information he seeks has already been publicly
disclosed. The district court rejected that argument in its order
denying the Rule 60(b) motion, concluding that Marino “fail[ed]
to meet his burden of identifying the specific information he
seeks that exists in the public domain” because his complaint
consisted chiefly of “lists of witnesses and evidence introduced

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at a third party’s criminal trial” without specifying which
witnesses or evidence “related to the investigative records of E.
Lopez.” Marino, 729 F. Supp. 2d at 244-45.
Yet in the context of a Glomar response, the public domain
exception is triggered when “the prior disclosure establishes the
existence (or not) of records responsive to the FOIA request,”
regardless whether the contents of the records have been
disclosed. Wolf v. Cent. Intelligence Agency, 473 F.3d 370, 379
(D.C. Cir. 2007). Marino’s complaint alleged not only that some
of the contents of Lopez’s file had been released, but more
particularly that the DEA had revealed publicly the link between
Lopez and NADDIS No. 3049901. The exhibits attached to his
complaint, which Marino used as support for his Rule 60(b)
motion, support this theory as well. Amicus has identified one
set of public documents included among these exhibits and
another set referred to in them that amicus claims show that
link. 2
2

We do not fault the district court’s failure to address these
documents, which were buried amid the rubble of over 500 pages of
documents Marino attached to his complaint. It did not have the benefit
of amicus’s careful digging and helpful briefing. Marino’s pro se Rule
60(b) motion is not a model of clarity and refers to his complaint and
extensive attachments in their entirety without highlighting specific
documents. It also focuses primarily on the broader issue whether
Marino is entitled to any of the documents within the NADDIS file
instead of on the preliminary question whether he is entitled to
acknowledgement that the file exists. Nevertheless, the complaint
raises sufficient allegations relating to the propriety of the DEA’s
Glomar response and existence of documents supporting Marino’s
theory of the case to put to rest any concern that Marino raises a new
argument on appeal. See, e.g., Compl. ¶¶ 49 (alleging that Lopez is
linked to NADDIS No. 3049901), 54-56 (alleging that records from
the drug conspiracy investigation and trials reference NADDIS No.
3049901).

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The first set of documents includes copies of three DEA
reports that link NADDIS No. 3049901 to Lopez. The reports
appear to be stamped as government exhibits in a case with the
same docket number as the trial of one of Marino’s coconspirators, Pastor Parafan-Homen, that took place in the
Eastern District of New York in 1998. Although these
unauthenticated documents cannot prove that the identity of the
person to whom NADDIS No. 3049901 was assigned is already
in the public domain, they at least establish a dispute over this
material fact. Showing a meritorious defense under Rule
60(b)(6) requires nothing more.
The second set of documents is only mentioned in a motion
Marino filed in his habeas case that he included among the
exhibits attached to his complaint in this one. The motion refers
to a government motion and a DEA report allegedly filed in the
same habeas case that both report Lopez as the subject of
NADDIS No. 3049901. If such documents exist as described
and are part of a public court record, they would be enough for
the requisite “hint of a suggestion” that Marino could prove at
trial the specific information he seeks has already been
disclosed. See Davis v. U.S. Dep’t of Justice, 968 F.2d 1276,
1279-80 (D.C. Cir. 1992) (holding that the public domain
exception applies to specific materials previously revealed in
open court). Although Marino would presumably need to
produce the actual documents at trial, at this juncture we require
much less. 3
3

The DEA objects that Marino should not be allowed to use a
document his own attorney prepared as evidence of a meritorious
defense. Yet although assertions by counsel are not evidence, see, e.g.,
Wood ex rel. United States v. Am. Inst. in Taiwan, 286 F.3d 526, 535
(D.C. Cir. 2002); Brown v. Immigration & Naturalization Serv., 775
F.2d 383, 388 (D.C. Cir. 1985), Marino relies on his motion — from a
separate case — only for the limited purpose of suggesting the

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The DEA argues that these documents would not give
Marino a meritorious defense even if he could show they
connected Lopez to NADDIS No. 3049901. Under the DEA’s
theory, from which counsel seemed to back away at oral
argument, see Oral Arg. Recording at 21:45-22:24, its Glomar
response would still be valid because a U.S. Attorney released
the documents, not the DEA. But the cases the DEA cites in
which we have allowed Glomar responses to stand despite prior
public disclosure implicated a concern not present here: forcing
one agency to adopt another’s official disclosure of information
common to both. Cf. Frugone v. Cent. Intelligence Agency, 169
F.3d 772, 774-75 (D.C. Cir. 1999) (protecting the CIA’s right to
make a Glomar response despite official disclosure of the same
information by the Office of Personnel Management). This
rationale explains why an agency does not waive its right to
invoke an otherwise valid FOIA exemption when “someone
other than the agency from which the information is being
sought” discloses it. Id. at 774. Even so, a federal prosecutor’s
decision to release information at trial is enough to trigger the
public domain exception where the FOIA request is directed to
another component within the Department of Justice. See Davis,
968 F.2d at 1279-82 (holding that the FBI — likewise part of
DOJ — could not withhold the specific portions of recordings
that the plaintiff showed were played in federal court).
The DEA also objects that Marino’s theory of the case is no
defense because public information showing the existence of an
investigatory file in Lopez’s name does not vitiate its right under
FOIA exemption 7(C) to withhold the contents of that file. But
this concern is misplaced. The DEA did not rely upon 7(C) to
withhold some or all of the contents of the file but to avoid
existence of other, government-produced documents that provide the
real support for his claim.

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confirming its existence. The only information the DEA has
claimed a legal basis to withhold is whether NADDIS No.
3049901 exists and belongs to Lopez, and Marino has raised a
plausible suggestion that this information has already been
disclosed. Even if later in litigation the DEA showed legitimate
grounds to withhold every document in NADDIS file No.
3049901, Marino has raised a meritorious defense that the
DEA’s justification for refusing even to confirm the file’s
existence has been undermined by prior public disclosure.
Finally, we reject the argument that the case is moot
because Marino has already received all the relief to which he is
entitled. The DEA contends that Marino’s claim seeks no more
than confirmation of the existence of a file — information he
has already by virtue of the alleged disclosure. Yet the DEA
once again conflates the ultimate merits of Marino’s FOIA
claim, which is not before us, with the limited question that is:
whether the DEA’s Glomar response was appropriate. If Marino
were to prevail on the Glomar issue, the DEA would be required
to confirm that responsive records exist, then either release them
or establish that they are exempt from disclosure. Cf. Wolf, 473
F.3d at 380 (“To determine whether the contents — as
distinguished from the existence — of the officially
acknowledged records may be protected from disclosure . . . we
remand the case to the district court where the [agency] must
either disclose any officially acknowledged records or
establish . . . that their contents are exempt from
disclosure . . . .”). This potential for relief defeats the DEA’s
mootness claim.
Because we conclude that the public domain exception
provides Marino with a meritorious defense to the DEA’s
summary judgment motion, we need not address whether the
alleged “public purpose” for the information he seeks is

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sufficient to outweigh exemption 7(C)’s personal privacy
concerns. We likewise say nothing about the overall merits of
Marino’s Rule 60(b)(6) motion, which the district court will
reconsider on remand in light of our decision.
III
For the foregoing reasons, the judgment of the district court
with respect to Marino’s Rule 60(b)(6) motion is reversed and
remanded for proceedings consistent with this opinion.
So ordered.

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