Angela Clemente v. FBI, et al

Filing

OPINION [1688324] filed (Pages: 20) for the Court by Judge Srinivasan. [16-5067]

USCA Case #16-5067

Document #1688324

Filed: 08/11/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2017

Decided August 11, 2017

No. 16-5067
ANGELA CLEMENTE,
APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01252)

James H. Lesar argued the cause and filed the briefs for
appellant.
Daniel P. Schaefer, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
Before: SRINIVASAN and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SRINIVASAN.

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SRINIVASAN, Circuit Judge: Appellant Angela Clemente,
acting under the Freedom of Information Act, sought records
from the FBI pertaining to a former informant. Clemente
later initiated this FOIA action against the FBI in the district
court. Over the course of several years of litigation, the
district court granted summary judgment to the FBI on the
adequacy of its search for responsive records and its
invocation of FOIA’s disclosure exemption for lawenforcement records. In addition, the court twice denied
Clemente’s motions for interim attorney fees. The court
eventually dismissed the case after Clemente failed to file
objections to the government’s latest explanation for
withholding information.
Clemente appeals the district court’s decisions to grant
summary judgment to the FBI, deny her motions for interim
attorney fees, and dismiss her remaining claims. Given the
limited scope of Clemente’s FOIA request, we reject her
challenges to the adequacy of the search. We also affirm the
district court’s remaining decisions. The court correctly
found that the records in this case met the threshold for
FOIA’s law-enforcement exemption, and the court acted
within its authority in denying Clemente’s motions for interim
attorney fees and in dismissing the remainder of the case.
I.
Clemente has spent years researching the activities of
Gregory Scarpa, Sr., a high-ranking Mafia member and FBI
informant. In furtherance of those efforts, on April 12, 2008,
Clemente sent a letter to the Record/Information
Dissemination Section of FBI Headquarters, requesting “the
entire UNREDACTED FBI file of Gregory Scarpa Sr.”
Letter from Angela Clemente, Forensic Intelligence Analyst,
to the FBI, Record/Info. Dissemination Section (Apr. 12,

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2008). On May 21, 2008, she sent another copy of that
request to the FBI.
On July 9, 2008, Clemente’s attorney sent the FBI a letter
stating that he wished to “clarify” her request. Letter from
James H. Lesar, Attorney, to David M. Hardy, Section Chief,
FBI Record/Info. Dissemination Section (July 9, 2008). The
letter stated:
Initially, we wish to clarify her request in certain
respects. First, Ms[.] Clemente’s request for the file
on Mr. Gregory Scarpa, Sr. is directed to any
informant file on Mr. Scarpa, including in particular
any Top Echelon (“TE”) Informant file. Secondly,
Ms. Clemente wishes to limit this request to the first
500 pages which fall within the following three
categories.
Id. The letter went on to describe those three categories:
records pertaining to New Orleans Mafia Chief Carlos
Marcello, records about any trip Scarpa made to Costa Rica,
and “all records in any informant file in chronological
sequence.” Id. Clemente’s attorney also asked to know the
number of additional responsive pages beyond the 500-page
limit.
Clemente alleges that, on the same day, her lawyer also
sent the FBI a second letter requesting information about
Scarpa. That letter had a broader scope than the first one.
The second letter requested “all records on or pertaining to
Gregory Scarpa” and contained detailed instructions to the
FBI on how to conduct its search. Second Letter from James
H. Lesar, Attorney, to David M. Hardy, Section Chief, FBI
Record/Info. Dissemination Section (July 9, 2008).

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On July 21, 2008, Clemente brought this suit in district
court, seeking to compel the FBI to respond to her request.
Neither her original nor her first amended complaint
mentioned a second July 9, 2008, letter. On October 10,
2008, David M. Hardy, the Chief of the FBI’s
Record/Information Dissemination Section, sent a letter
confirming that the FBI had received Clemente’s clarification
(i.e., the first July 9 letter) and had located about 1,170 pages
of potentially responsive records. The letter also quoted $107
in duplication costs for those records. On November 21,
2008, after Clemente’s lawyer sent the FBI a check for $107,
the agency released the first 500 pages from Scarpa’s
informant file. In March 2009, the FBI sent Clemente an
additional 653 pages of responsive records from that file.
Over the next few years, the parties went through three
rounds of summary judgment motions. The FBI filed several
affidavits—commonly called Vaughn indices, see Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973)—explaining the
agency’s decision to withhold certain records. The case was
originally assigned to Judge Friedman, but, on September 1,
2011, it was transferred to Judge Rothstein. See Letter from
James H. Lesar, Attorney, to Mark J. Langer, Clerk, U.S.
Court of Appeals for the D.C. Circuit 5 (Aug. 24, 2016)
(Lesar Letter).
The district court granted summary judgment to the FBI
with regard to the adequacy of its search. See Clemente v.
FBI, 741 F. Supp. 2d 64, 77, 79-80 (D.D.C. 2010). The court
also concluded that the FBI satisfied its burden of showing
that certain records had been compiled for law enforcement
purposes and thus could be withheld from disclosure if the
Bureau submitted an appropriate Vaughn index explaining
why disclosure would cause one of the harms enumerated in
5 U.S.C. § 552(b)(7). Id. at 84. In 2013, and again in 2015,

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the district court denied Clemente’s motions for an interim
award of attorney fees. See Clemente v. FBI, 166 F. Supp. 3d
11, 14 (D.D.C. 2015), reconsideration denied, No. 1:08-cv1252, 2015 WL 10738604 (D.D.C. Dec. 1, 2015). After
Clemente failed to file objections to the FBI’s latest Vaughn
index by a court-imposed deadline, the district court
dismissed the case. Clemente appealed to this court and also
filed a motion for a final award of attorney fees in the district
court.
II.
Before addressing the merits of Clemente’s claims, we
first consider a challenge to the district court’s jurisdiction.
The orders on appeal in this case were entered by Judge
Rothstein, who sits on the United States District Court for the
Western District of Washington but was designated and
assigned to the United States District Court for the District of
Columbia. Clemente contends that Judge Rothstein lacked
the proper designation to hear this case. We disagree.
The Chief Justice of the United States has statutory
authority to “designate and assign temporarily a district judge
of one circuit for service in another circuit.” 28 U.S.C.
§ 292(d). Another provision gives the Chief Justice the same
authority with respect to judges who have assumed senior
status. Id. § 294(d). On August 23, 2011, pursuant to section
292(d), the Chief Justice designated Judge Rothstein “to
perform judicial duties in the United States District Court for
the District of Columbia during the period(s) of September 1,
2011 to March 1, 2012 . . . and for such time as needed in
advance to prepare and to issue necessary orders, or thereafter
as required to complete unfinished business.” Lesar Letter at
6. On September 1, 2011, this case was transferred to Judge
Rothstein. She also assumed senior status on the same day.

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On February 23, 2012, the Chief Justice re-designated Judge
Rothstein—this time pursuant to section 294(d) in light of her
having assumed senior status—“to perform judicial duties”
from March 1, 2012 to September 1, 2012. Id. at 7. That
designation likewise allowed for “such time . . . thereafter as
required to complete unfinished business.” Id.
Those designations cover Judge Rothstein’s actions in
this litigation. She took over the case while acting under the
first designation. And although that designation provided for
her to exercise duties under the assignment until March 1,
2012, it also enabled her to continue her duties for “such time
thereafter” as may be “required to complete unfinished
business.” She therefore could continue working on this case.
She assumed senior status during the operative period of the
first designation, but we understand that designation to have
continued in force notwithstanding her taking senior status.
At any rate, in February 2012, she was redesignated under the
statutory provision governing senior judges, and this second
designation gave her authority to continue working on this
case even assuming the first one no longer did so.
This case is unlike two cases Clemente cites, Wrenn v.
District of Columbia, 808 F.3d 81 (D.C. Cir. 2015), and Frad
v. Kelly, 302 U.S. 312 (1937). In Wrenn, we vacated an order
entered by a visiting judge designated to hear certain specified
cases because the order was issued in a case beyond the ones
identified in the designation. See 808 F.3d at 83-84. In
contrast, neither of Judge Rothstein’s pertinent designations
was limited to particular cases. The visiting judge in Frad v.
Kelly sat by designation for a limited time period. Frad, 302
U.S. at 316. The Supreme Court found that the judge had no
authority, after his designation expired, to revoke the
probation of a defendant he had tried while sitting by
designation because the trial had already been “concluded by

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the judgment of sentence.” Id. at 317. The problem in Frad
was thus the judge’s issuing an order in what amounted to a
new matter he took on after his designation had ended. Judge
Rothstein’s actions here, in contrast, were all taken in the
same matter, one properly transferred to her during her 201112 designation.
III.
Turning to the merits, we first address Clemente’s claims
concerning the adequacy of the FBI’s search for responsive
records. Our review of the district court’s grant of summary
judgment on that issue is de novo. See Nation Magazine,
Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 889
(D.C. Cir. 1995). We hold that the district court was correct
in construing the scope of Clemente’s request, and we
therefore reject Clemente’s challenges to the search.
A.
We begin our assessment of the FBI’s search by “first
ascertain[ing] the scope of the request itself.” Id. Clemente
contends that the scope of her FOIA request was broader than
the terms laid out in the first July 9, 2008, letter. We are
unpersuaded.
The first July 9, 2008, letter by its own terms “clarif[ied]
[Clemente’s] request in certain respects.” Letter from James
H. Lesar, Attorney, to David M. Hardy, Section Chief, FBI
Record/Info. Dissemination Section (July 9, 2008).
Specifically, the letter stated that Clemente’s request was
directed “to any informant file on Mr. Scarpa, including in
particular any Top Echelon (‘TE’) Informant file,” and asked
for records “limit[ed] . . . to the first 500 pages which fall
within [three specified categories].” Id. Although agencies

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should construe FOIA requests liberally, see Nation
Magazine, 71 F.3d at 890, that language plainly “clarif[ies]”
that Clemente’s request is limited to records in “any
informant file” on Scarpa.
Clemente alleges that she sent a second—and more
expansive—letter, also on July 9, 2008. That second letter,
unlike the first one, was not limited to three categories of
documents in the Scarpa informant file. Instead, it sought “all
records on or pertaining to Gregory Scarpa.” Second Letter
from James H. Lesar, Attorney, to David M. Hardy, Section
Chief, FBI Record/Info. Dissemination Section (July 9, 2008).
There is no evidence, however, that Clemente’s attorney
ever sent, or the FBI ever received, the second July 9 letter.
The FBI attests that it found no evidence, even upon reexamining its records, of its having received that letter.
According to the agency, it became aware of the letter only
when Clemente attached it to her second amended complaint.
Third Hardy Decl. ¶¶ 4-5. Clemente offers no basis for
doubting the FBI’s sworn statement, especially given our
presumption that agency affidavits are made in good faith.
See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991). Moreover, neither Clemente’s original complaint
nor her first amended complaint referenced any second letter
of July 9, 2008. To the contrary, both complaints averred
that, after the first July 9 letter, there was “[n]o further
correspondence” between Clemente and the Bureau. Compl.
¶ 12; First Am. Compl. ¶ 12. And unlike the first letter sent
that day, the second letter contains no indication it was sent
via certified mail. The district court therefore did not err in
construing Clemente’s request in accordance with the terms of
the first July 9, 2008, letter—viz., as directed to three
categories of documents in Scarpa’s informant file.

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Contrary to Clemente’s claims, the FBI’s response to the
first July letter is entirely consistent with that understanding.
The agency, referencing the three categories of documents set
out in the first July 9 letter, stated it had “located
approximately 1170 [potentially responsive] pages,” quoted
duplication costs consistent with that number, and ultimately
released over 1,000 pages of responsive records to her. Letter
from David M. Hardy, Section Chief, FBI Record/Info.
Dissemination Section, to James H. Lesar, Attorney 2 (Oct.
10, 2008). Clemente incorrectly reads the FBI’s response to
indicate that the agency construed her request to be broader
than the 500-page limit referenced in her first July 9, 2008,
letter. That letter, while requesting only the first 500 pages of
responsive records, specifically asked the agency to advise
her of the number of additional responsive pages it had found.
The FBI eventually released the additional records because
Clemente paid duplication costs for them.
B.
Having resolved the scope of Clemente’s request, we
now address the adequacy of the FBI’s search for responsive
documents. “In order to obtain summary judgment the
agency must show that it made a good faith effort to conduct a
search for the requested records, using methods which can be
reasonably expected to produce the information requested.”
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990). Here, the FBI’s search satisfied that standard.
As the FBI declarations describe, the agency’s Central
Records System (CRS) contains information gathered in
fulfillment
of
“its
mandated
law
enforcement
responsibilities.” First Hardy Decl. ¶ 14. The CRS “consists
of a numerical sequence of files” organized by subject matter,
id., and the agency searches the CRS using alphabetized

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entries in the General Indices, id. ¶ 16. Each alphabetized
entry in the General Indices is either a “main” entry, in which
the name of the entry corresponds to the subject of a CRS file,
or a “cross-reference[],” in which the entry is “mere[ly]
mention[ed] or reference[d]” in a record within a main file on
a different subject. Id. In response to Clemente’s FOIA
request, FBI Headquarters (FBIHQ) “searched the CRS using
[the] subject’s name in order to locate any informant files
maintained at FBIHQ.” Id. ¶ 20. That search yielded “one
main informant file” directly responsive to Clemente’s FOIA
request. Id.
The agency had no obligation to conduct further searches
once it found the Scarpa informant file, the precise records
covered by Clemente’s request. Contrary to her argument, the
FBI had no need to conduct a full-text search, examine a
separate electronic surveillance records system, or search for
“tickler files” (duplicate files containing copies of records
informally kept by supervisors). As the FBI explained in its
declarations, those searches would have been redundant or
beyond the scope of Clemente’s specific request. See Sixth
Hardy Decl. ¶¶ 7-8, 13. Similarly, because Clemente’s
request was directed to Scarpa’s informant file, the FBI was
not required to search cross-references, which by definition
indicate references to Scarpa in files on different subject
matters.
Clemente additionally contends that the FBI’s search was
inadequate because it failed to uncover records she believes
must exist, including information about a trip Scarpa
allegedly took to Mississippi at the behest of the FBI. At the
outset, Clemente concedes that the FBI did release one record
on that subject. At any rate, we have repeatedly emphasized
that a search “is not unreasonable simply because it fails to
produce all relevant material.” Mobley v. CIA, 806 F.3d 568,

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583 (D.C. Cir. 2015) (quoting Meeropol v. Meese, 790 F.2d
942, 952-53 (D.C. Cir. 1986)) (internal quotation marks
omitted). When rejecting a plaintiff’s challenge to the
adequacy of an agency’s search, we thus have explained that,
even though the search “did not produce certain materials [the
plaintiff] believes exist and had hoped to find[,] . . . FOIA is
not a wishing well; it only requires a reasonable search for
records an agency actually has.” DiBacco v. U.S. Army, 795
F.3d 178, 190 (D.C. Cir. 2015).
Finally, Clemente seeks to demonstrate the inadequacy of
the agency’s search by pointing to the agency’s failure to
release certain records relocated from the Scarpa informant
file. The agency’s affidavits explain that one of those records
had been incorrectly indexed to the informant file, and that,
upon review, that record is unresponsive to Clemente’s
request. Clemente offers no basis to doubt the agency’s
conclusion. The remaining relocated records were moved to
an informant file in the FBI’s New York field office. The
district court held—and the FBI asserts—that the agency had
no obligation to retrieve those records because, at the time of
Clemente’s FOIA request, an agency regulation mandated that
requests for FBI field office records be sent directly to the
relevant field office. See 28 C.F.R. § 16.3(a) (2008). We
agree that the FBI had no obligation to retrieve the relocated
records from the field office in the circumstances of this case.
As an initial matter, contrary to Clemente’s claim, our
decision in Campbell v. U.S. Department of Justice, 164 F.3d
20 (D.C. Cir. 1998), amended (Mar. 3, 1999), did not decide
the same question. In Campbell, the requester submitted his
FOIA request to the New York field office, and we stated,
“even if the New York office had searched its [electronic
surveillance] index, the national office would still have been
obliged to search its own index if it had cause to believe that

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such a search would identify responsive information.” Id. at
27 n.4. As the district court here recognized, the FOIA
request in Campbell predated the agency’s promulgation of
the regulation requiring requests for records held by a field
office to be directed to that office. See Campbell, 164 F.3d at
26; Revision of Freedom of Information Act and Privacy Act
Regulations and Implementation of Electronic Freedom of
Information Act Amendments of 1996, 63 Fed. Reg. 29591,
29594 (June 1, 1998).
An agency’s procedures for conducting a search for
responsive records must be reasonable. See Pub. Citizen v.
Dep’t of State, 276 F.3d 634, 642-44 (D.C. Cir. 2002). An
agency thus of course cannot impose requirements on
requesters that take on the character of a shell game, imposing
unwarranted burdens on requesters without apparent
justification. Here, though, we have no basis to conclude that
the FBI acted unreasonably in requiring requests for records
held by a field office to be directed to the relevant office. See
28 C.F.R. § 16.3(a) (2008). That regulation by nature
generally aims to promote an agency’s ability to respond to
requests in an efficient manner. Clemente gives us no reason
to find that the FBI cannot adhere to its requirement in this
case. After filing this suit, Clemente in fact submitted
multiple FOIA requests to the New York field office seeking
records about Scarpa, and those requests are the subject of a
separate suit currently pending in district court. See Compl. at
3-9, Clemente v. FBI, 71 F. Supp. 3d 262 (D.D.C. 2014) (No.
13-cv-108).
IV.
Clemente argues that the withheld records in the Scarpa
informant file fail to qualify as “records or information
compiled for law enforcement purposes” within the meaning

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of one of FOIA’s disclosure exemptions, exemption seven.
See 5 U.S.C. § 552(b)(7). We review the district court’s grant
of summary judgment on that issue de novo, see Jefferson v.
Dep’t of Justice, Office of Prof’l Responsibility, 284 F.3d 172,
176 (D.C. Cir. 2002), and we conclude that the agency
properly invoked FOIA’s law-enforcement exemption.
To determine “whether records are compiled for law
enforcement purposes, this circuit has long emphasized that
the focus is on how and under what circumstances the
requested files were compiled and whether the files sought
relate to anything that can fairly be characterized as an
enforcement proceeding.” Id. at 176–77 (citations and
quotation marks omitted). Although an agency bears the
burden to show that the records meet the exemption-seven
threshold, id. at 178, the FBI’s “decision to invoke exemption
7 is entitled to deference” because the agency “specializes in
law enforcement.” Campbell, 164 F.3d at 32. To meet the
agency’s burden using declarations, the declarations must
establish a connection between the assertedly exempt records
and an inquiry into “a possible security risk or violation of
federal law.” Id. (quoting Pratt v. Webster, 673 F.2d 408,
420-21 (D.C. Cir. 1982)) (internal citations omitted). In
addition, the declarations must establish a “rational nexus”
between the inquiry and “one of the agency’s law
enforcement duties.” Id. (internal quotation marks omitted).
The FBI’s declarations here show that the withheld
records in the Scarpa informant file were “compiled for law
enforcement purposes.” The first Hardy declaration states,
“[t]he records responsive to plaintiff’s requests pertain to the
investigation of the activities of [Scarpa] . . . as a [Top
Echelon] informant for the FBI and . . . in the [Mafia]
pursuant to[] 18 U.S.C. § 1961,” the Racketeer Influenced and
Corrupt Organizations (RICO) Act, which targets organized

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crime. First Hardy Decl. ¶ 40. The Sixth Hardy declaration
further explains that the FBI compiled the records
to collect evidence and/or information from an
established informant, and document and monitor the
actions of this informant, pursuant to [RICO]. RICO
enforcement is a specific, and well established
criminal law enforcement function of the FBI.
Furthermore, the FBI utilizes its informant program
as a vital resource to further its varied criminal
investigative obligations worldwide.
Sixth Hardy Decl. ¶ 15. The declarations thus demonstrate
the requisite connection between Scarpa, potential violations
of a law targeting organized criminal activity, and the FBI’s
duty to enforce that law. See Campbell, 164 F.3d at 32.
Clemente argues that the records fail to meet the
exemption-seven, “law enforcement purposes” threshold
because Scarpa and his handler allegedly used the information
gathered by the FBI for unlawful purposes. For example,
Clemente alleges that Scarpa’s handler gave Scarpa the
address where one of Scarpa’s rivals had been surveilled by
federal agents so that Scarpa could kill him. Even if Scarpa
and his handler took and misused FBI information, however,
records reflecting some of the same information could have
been compiled for a law enforcement purpose.
Clemente’s remaining arguments are similarly
unpersuasive. She contends that Scarpa’s activities were
“non-specified spying” untethered to any particular
investigation.
Appellant Br. 55-56, 58.
The FBI’s
declarations make clear, however, the relationship between
Scarpa’s informant activities and the FBI’s efforts to gather
information about the Mafia, a criminal enterprise. That

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suffices to meet the exemption-seven threshold. Clemente
also claims that the records were compiled for administrative
purposes as part of FBI oversight of an employee, rather than
for law-enforcement purposes. But as we have explained, “if
the investigation is for a possible violation of law, then the
inquiry is for law enforcement purposes, as distinct from
customary surveillance of the performance of duties by
government employees.” Jefferson, 284 F.3d at 177. The
records in Scarpa’s informant file thus qualify for withholding
under the law-enforcement exemption.
V.
Clemente next challenges the district court’s decision to
deny her motions for interim attorney fees. Under FOIA, a
court “may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in
any case . . . in which the complainant has substantially
prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). We have thus
described the court’s analysis in the context of final attorney
fees as a two-pronged inquiry:
whether the plaintiff
substantially prevailed and, if so, whether certain factors
suggest the plaintiff is entitled to attorney fees. Brayton v.
Office of the U.S. Trade Representative, 641 F.3d 521, 524
(D.C. Cir. 2011).
Here, the government neither questions the district
court’s authority to grant interim fees under FOIA nor
disputes whether Clemente substantially prevailed. The only
question thus is whether the district court committed legal or
factual errors in declining to grant Clemente interim fees. As
we have said in the context of final fee awards, “we review
the district court’s refusal to award attorney fees for abuse of
discretion.” Brayton, 641 F.3d at 524. We find an

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insufficient basis for concluding that the court abused its
discretion in denying Clemente interim fees.
In twice declining to grant Clemente an interim award of
attorney fees, the district court took into account the following
four factors, drawn from Allen v. FBI, 716 F. Supp. 667
(D.D.C. 1988): the financial hardship to Clemente and her
attorney of delaying the fee award, “unreasonable delay on
the government’s part,” “the length of time the case has been
pending,” and “the period of time likely to be required before
the litigation is concluded.” Order Denying Pl.’s Mot. for
Interim Award of Att’y Fees and Costs 3 (quoting Allen, 716
F. Supp. at 672); see id. at 5; see also Clemente, 166 F. Supp.
3d at 14-15. Clemente claims that the district court erred in
the factors it took into account and its application of those
factors to this case.
We find no error in the district court’s decision to
account for financial hardship, delay, and the duration of the
litigation in considering whether to award interim fees. Under
FOIA, a district court “may” grant attorney fees to a plaintiff
who has “substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i).
It is eminently reasonable for a district court, in determining
whether to award interim fees or instead wait to award fees
until the end of the litigation, to consider factors going to the
plaintiff’s ability to continue the litigation.
In fact, our only published opinion examining interim
fees under FOIA approvingly referenced the consideration of
such factors. In National Association of Criminal Defense
Lawyers, Inc. v. U.S. Department of Justice, we declined to
find an interim fee award immediately appealable under the
collateral order doctrine. 182 F.3d 981 (D.C. Cir. 1999). The
district court in that case had granted interim fees after
“[f]inding that the protracted litigation had imposed a

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financial hardship upon counsel.” Id. at 983. In denying the
government’s interlocutory appeal of the interim award, we
noted:
the financial hardship that may warrant an interim
award of attorney’s fees is not the same as the
irreparable harm needed to justify interlocutory
review. For an interim award of attorney’s fees it is
enough that the fee is high relative to the party’s or
its counsel’s ability to continue financing the
litigation.
Id. at 986 (citing Allen, 716 F. Supp. at 670).
Applying the aforementioned factors, the district court
twice denied Clemente interim fees. In its first order, the
court found Clemente’s terminal illness and ability to pay
irrelevant to the fees determination because her attorney took
the case on contingency. The court further concluded that
Clemente’s lawyer had established only a “general financial
hardship that faces all attorneys who accept cases on a
contingency fee basis.” Order Denying Pl.’s Mot. for Interim
Award of Att’y Fees and Costs 5. “Most importantly,” the
court believed the case would soon end because the FBI
intended to renew its summary judgment motion. Id.
Two years later, the court denied Clemente’s renewed
motion for interim fees. It again found that Clemente failed to
demonstrate financial hardship, noting that only some of her
attorney’s financial losses were attributable to this case.
Clemente, 166 F. Supp. 3d at 14. The court also observed that
Clemente’s attorney had recently been awarded close to
$300,000 in legal fees in a separate FOIA matter. Id. at 1415. In response to Clemente’s claim that the duration of the
litigation was due to the FBI’s “unreasonable delay,” id. at 14,

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the district court instead found it “largely attribut[able] to
[Clemente]’s dilatory conduct,” id. at 15. Finally, the court
predicted the case would soon end, thus allowing it to
“address the matter of attorney’s fees at the conclusion of this
litigation.” Id.
The district court acted within its discretion in declining
to grant Clemente an interim award of attorney fees. With
respect to the financial hardship analysis, we are unpersuaded
that the court acted unreasonably in requiring Clemente and
her counsel to show particularized hardship beyond the
hardship common to contingency cases. Furthermore, the
district court’s decision to exclude Clemente’s ability to pay
from its analysis was logical because, by definition, a plaintiff
in a contingency case has no obligation to pay counsel out of
pocket. Relatedly, the court reasonably evaluated Clemente’s
attorney’s overall income from legal fees in order to
determine whether delaying a fee award would constitute a
hardship. Indeed, it would be anomalous for a district court,
once it decided to take into account financial hardship, to
ignore the attorney’s financial ability to continue litigating the
case.
We also find no basis to set aside the district court’s
analysis of the parties’ relative responsibility for the delays in
the litigation, a subject about which that court had first-hand
familiarity. And the court provided a reasonable basis, each
time it denied interim fees, for assuming the litigation would
soon end. Indeed, five months after the court denied
reconsideration of its second order denying interim fees,
Clemente filed a motion for final attorney fees. The district
court partially granted that motion, and, as of the time of this
opinion, is deciding a related reconsideration motion. For all
of these reasons, although the district court could have

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approached the analysis differently, the court acted within its
discretion in denying interim fees.
VI.
The final issue we confront is whether the district court
erred in dismissing the remainder of the case. “District courts
have inherent power to dismiss a case sua sponte for a
plaintiff’s failure to prosecute or otherwise comply with a
court order,” and we review the district court’s exercise of its
dismissal authority for abuse of discretion. Peterson v.
Archstone Communities LLC, 637 F.3d 416, 418 (D.C. Cir.
2011). We conclude that the district court acted within its
authority here.
On September 17, 2014, the FBI filed its latest Vaughn
index in which it explained its rationale for withholding
certain information. In October 2015, the district court
expressed concern “about the glacial pace” of the litigation
and gave Clemente until November 13, 2015, to inform the
FBI of any objections to the index or else be deemed to have
waived them. See Clemente, 166 F. Supp. 3d at 15. The court
further set a January 11, 2016, deadline for Clemente to file a
brief detailing any unresolved objections. See id. After
Clemente failed to file a brief by the deadline, the court
dismissed the case, noting that Clemente had waived
objections to the Vaughn index.
While we have referred to dismissal as a “harsh
sanction,” see Peterson, 637 F.3d at 418 (quoting EnglishSpeaking Union v. Johnson, 353 F.3d 1013, 1016 (D.C. Cir.
2004)), the district court here acted within its authority. As an
initial matter, the district court made it clear that Clemente
would waive any remaining objections to the government’s
latest Vaughn index if she failed to raise objections by a

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certain date. Once Clemente waived those objections, there
appear to be few if any remaining unresolved issues on the
merits of the case. More significantly, Clemente indicated in
her briefing, and her attorney conceded at oral argument, that
she intentionally let the district court dismiss the case so that
she could more quickly bring issues—particularly the denial
of interim attorney fees—to our court for review. As we
explained when evaluating a dismissal pursuant to Rule 41(b),
dismissal can sometimes be justified “when there is some
indication that the client or attorney consciously fails to
comply with a court order cognizant of the drastic
ramifications.” Gardner v. United States, 211 F.3d 1305,
1309 (D.C. Cir. 2000). In these circumstances, we conclude
that the district court did not abuse its discretion in dismissing
the remainder of the case.
*

*

*

*

*

For the foregoing reasons, we affirm the district court’s
grant of summary judgment in favor of the FBI, its denial of
interim attorney fees, and its dismissal of the remaining issues
in the case.
So ordered.

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