UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MAYDAK, KEITH

v.

DOJ


98-5492a

D.C. Cir. 2000


*	*	*


United States Court of Appeals


FOR THE DISTRICT OF COLUMBIA CIRCUIT


Argued May 3, 2000 Decided July 18, 2000 


No. 98-5492


Keith Maydak  Appellant


v.


United States Department of Justice,  Appellee


Appeal from the United States District Court  for the District of
Columbia  (No. 97cv01830)


Keith Maydak, appearing pro se, was on the brief for  appellant.


David C. Belt, appointed by the court, argued the cause as  amicus
curiae on the side of appellant. With him on the  briefs was Deanne E.
Maynard.


Daria J. Zane, Assistant United States Attorney, argued  the cause for
appellee. With her on the brief were Wilma A.  Lewis, U.S. Attorney,
and R. Craig Lawrence, Assistant U.S.  Attorney.


Before: Silberman, Sentelle and Rogers, Circuit Judges.


Opinion for the Court filed by Circuit Judge Sentelle.


Sentelle, Circuit Judge: Keith Maydak seeks the release  under the
Freedom of Information Act ("FOIA") of copies of  law enforcement
records compiled by the U.S. Attorney's  Office for the Western
District of Pennsylvania in connection  with his criminal prosecution
for various offenses. The gov- ernment originally denied Maydak's FOIA
request by invok- ing FOIA Exemption 7(A), which permits the
withholding of  law enforcement records which if produced "could
reasonably  be expected to interfere with enforcement proceedings." 5 
U.S.C. s 552(b)(7)(A) (1994). The district court granted sum- mary
judgment for the government on that basis, holding that  it could
withhold the documents. Having now abandoned its  assertion of
Exemption 7(A), however, the Department of  Justice ("DOJ") seeks a
remand of this case so that it might  defend the applicability of
other FOIA exemptions. Because  the DOJ has failed to explain
adequately why it could not  have pleaded the other exemptions on
which it wished to rely  in the original district court proceedings,
we deny the motion  for remand, reverse the district court's judgment,
and order  the release of all requested documents to Maydak.


I. Background


Maydak was convicted of wire fraud, mail fraud, access  device fraud,
and money laundering in the United States  District Court for the
Western District of Pennsylvania in  1994. He currently remains
incarcerated for those crimes.  On September 23, 1994, while his
appeal from his criminal  conviction was pending, Maydak filed with
the United States  Attorney's Office for the Western District of
Pennsylvania a  request under FOIA and the Privacy Act, 5 U.S.C. s
552a,  for "copies of any and all documents which pertain to me, 


mention me, or list my name." On October 6, 1994, that  request was
forwarded to the Executive Office for United  States Attorneys
("EOUSA").


On November 15, 1994, the EOUSA by letter denied May- dak's request in
full, relying solely on FOIA Exemption 7(A).  Exemption 7(A) exempts
from FOIA disclosure requirements  "records or information compiled
for law enforcement pur- poses ... to the extent that the production
of such law  enforcement records or information ... could reasonably
be  expected to interfere with enforcement proceedings...." 5  U.S.C.
s 552(b)(7)(A). The principal purpose of Exemption  7(A) is to prevent
disclosures which might prematurely reveal  the government's cases in
court, its evidence and strategies,  or the nature, scope, direction,
and focus of its investigations,  and thereby enable suspects to
establish defenses or fraudu- lent alibis or to destroy or alter
evidence. See NLRB v.  Robbins Tire & Rubber Co., 437 U.S. 214, 227,
241-42 (1978);  see also 37A Am. Jur. 2d Freedom of Information Acts s
303  (1994). Another recognized goal of Exemption 7(A) is to  prevent
litigants from identifying and intimidating or harass- ing witnesses.
See Robbins Tire, 437 U.S. at 239-40. In its  denial letter, the EOUSA
stated that "portions of the infor- mation" contained in Maydak's file
were "being considered in  connection with" his pending appeal, and
thus that the gov- ernment was withholding all of the requested
documents  pursuant to Exemption 7(A). Maydak filed a timely appeal of
 the EOUSA's denial with the Department of Justice's Office  of
Information and Privacy ("OIP"). On August 8, 1995, the  Third Circuit
affirmed Mayak's conviction and sentence. See  United States v.
Maydak, 66 F.3d 313 (3d Cir. 1995) (table).  On May 29, 1996, the OIP
informed Maydak that it was  remanding his FOIA request for
reprocessing because the  EOUSA had concluded that Exemption 7(A) no


On August 23, 1996, Maydak filed in the Western District  of
Pennsylvania a motion pursuant to 28 U.S.C. s 2255 to  vacate his
sentence. Maydak had waived his right to counsel  at sentencing. In
his s 2255 motion, he claimed that the  waiver was not voluntary,
knowing and intelligent because the 


court had not first explained to him the consequences of  proceeding
pro se, and thus that he was entitled to a new  sentencing. On
September 11, 1996, the district court dis- missed Maydak's s 2255
motion. In November 1996, May- dak filed a motion in the Third Circuit
for a certificate of  appealability to challenge that dismissal. On
February 7,  1997, EOUSA again denied Maydak's FOIA request on Ex-
emption 7(A) grounds because of the pending s 2255 motion.  Maydak
again filed a timely appeal with the OIP. On April  10, 1997, the
Third Circuit denied Maydak's motion for a  certificate of
appealability. And on June 12, 1997, the OIP  informed Maydak that it
was again remanding his FOIA  request for reprocessing because the
EOUSA had concluded  that Exemption 7(A) no longer applied.


In response to the OIP's July 1997 remand of his FOIA  request, on
August 13, 1997, Maydak filed a complaint in the  United States
District Court for the District of Columbia  seeking an order
requiring the government to provide the  records and a list of all
documents withheld. In proceedings  before the district court, Maydak
asserted that the documents  he requested were not exempt from
disclosure under FOIA  Exemption 7(A). Because he had already been
convicted,  Maydak contended that there were no "enforcement proceed-
ings" pending with which release of the requested documents  could
interfere. The DOJ maintained that Exemption 7(A)  continued to apply
because the proceedings addressing May- dak's post-conviction motions
(including but not limited to the  August 23, 1996, s 2255 motion
pending when his FOIA  request was reprocessed) derived from and were
part of the  original law enforcement proceedings, and disclosure
would  interfere with the DOJ's ability to respond to those motions. 
The DOJ also argued that, should any of the motions result in  the
vacating of Maydak's conviction, disclosure of the request- ed
documents could interfere with the government's ability to  prosecute


To support its argument that disclosure would interfere  with those
ongoing proceedings and to satisfy the govern- ment's burden of proof
in denying a FOIA claim, the DOJ  presented declarations from Paul E.
Hull, the AUSA in the 


Western District of Pennsylvania who prosecuted Maydak,  and from John
F. Boseker, an attorney adviser in the  EOUSA. The declarations
grouped the requested records  into categories and offered generic
reasons for withholding  the documents in each. It is well established
that the govern- ment can satisfy its burden of proof under Exemption
7(A) by  utilizing this format. See, e.g., Robbins Tire, 437 U.S. at
236;  Bevis v. Department of State, 801 F.2d 1386, 1390 (D.C. Cir. 
1986); Crooker v. Bureau of Alcohol, Tobacco and Firearms,  789 F.2d
64, 66-67 (D.C. Cir. 1986).


While his FOIA case was pending, on September 18, 1997,  Maydak filed
in the Western District of Pennsylvania a  motion for a new trial
based on newly discovered evidence  pursuant to Federal Rule of
Criminal Procedure 33. On  March 25, 1998, the district court denied
the motion, and  Maydak appealed. On May 27, 1999, the Third Circuit
af- firmed the district court's decision. See United States v. 
Maydak, 182 F.3d 904 (3d Cir. 1999) (table). On September  16, 1999,
Maydak filed a petition for a writ of certiorari in the  United States
Supreme Court, which petition was subse- quently denied on November
29, 1999. See Maydak v. Unit- ed States, 120 S. Ct. 556 (1999).


Additionally, on October 22, 1997, Maydak filed in the  Third Circuit a
motion for leave to file another s 2255  petition, seeking to reassert
the invalid waiver of counsel at  sentencing issue. On November 17,
1997, the Third Circuit  denied that motion as well, but stayed its
denial pending  disposition of another case. The Third Circuit finally
dis- posed of Maydak's motion to file another s 2255 petition on 
January 11, 2000.


Returning to Maydak's FOIA claim, on September 1, 1998,  the district
court agreed with the DOJ that the release of the  requested documents
would interfere with enforcement pro- ceedings in the event that
Maydak's pending post-conviction  motions and appeals succeeded.
Accordingly, the court held  that the government properly withheld the
records under  Exemption 7(A), and granted summary judgment in favor
of  the DOJ. Maydak appealed the district court's decision to 


this court. We appointed an amicus curiae ("Amicus") and  certified two
questions: (1) whether FOIA Exemption 7(A)  continues to apply as long
as a criminal defendant is pursuing  a post-conviction collateral
attack on the judgment or sen- tence entered in a criminal enforcement
proceeding to which  the withheld records relate; and (2) whether the
DOJ,  through its submissions below, met its burden of justifying its 
invocation of Exemption 7(A) to shield all the records it  identified
as falling within the various record categories, as  well as the
residual records not specifically categorized.


On June 18, 1999, the DOJ conceded partial error with  respect to the
second of these issues, allowing specifically that  the statement in
the Hull declaration that "[m]ost of the  documents can be placed into
one of the [listed] categories"  was inadequate to meet the
government's burden under Ex- emption 7(A) with respect to those
documents which had not  been categorized. The DOJ requested a remand
to the  district court so that it might present evidence to justify
the  withholding of the uncategorized documents.


Subsequently, the DOJ informed Maydak and Amicus on  July 30 and August
2, 1999, respectively, that "[d]ue to the  change in circumstances
regarding a previously pending law  enforcement matter in which
[Maydak] was involved," the  government was abandoning its assertion
of Exemption 7(A)  with respect to Maydak's FOIA request. On August 6,
1999,  Amicus notified the DOJ that Maydak intended to appeal the 
Third Circuit's May 27, 1999, decision to the Supreme Court,  and that
his motion for leave to file a second s 2255 petition  was still
pending in the Third Circuit. Nevertheless, on  August 26, 1999, the
DOJ filed with this court a second  motion for remand based on changed
circumstances, confirm- ing that it had abandoned its reliance on
Exemption 7(A) and  requesting the opportunity for the EOUSA to
reprocess  Maydak's FOIA request and determine whether other FOIA 


On November 23, 1999, we dismissed as moot the govern- ment's original
motion for remand to review and categorize  the documents overlooked
in the original proceedings and 


ordered briefing and oral argument on the DOJ's second  motion for
remand. A few days prior to oral argument,  Amicus notified this court
that the EOUSA had released  some of the requested materials, but had
invoked FOIA  Exemptions 2, 3, 5, 7(C), 7(D), and 7(E), 5 U.S.C. s
552(b)(2),  (b)(3), (b)(5), (b)(7)(C), (b)(7)(D), and (b)(7)(E)
(1994), in with- holding 1,524 pages of documents and redacting
several of the  released documents. Amicus also indicated that the
EOUSA  refused to release requested documents which originated  from
other agencies and which the EOUSA had "forwarded"  back to them.


II. Analysis


We turn now to the DOJ's motion for remand. The  government bears the
burden of proving the applicability of  any statutory exemption it
asserts in denying a FOIA re- quest. We have plainly and repeatedly
told the government  that, as a general rule, it must assert all
exemptions at the  same time, in the original district court
proceedings. See  Washington Post Co. v. United States Dep't of Health
&  Human Servs., 795 F.2d 205, 208 (D.C. Cir. 1986); Ryan v. 
Department of Justice, 617 F.2d 781, 789, 792 (D.C. Cir.  1980);
Jordan v. United States Dep't of Justice, 591 F.2d 753,  779-80 (D.C.
Cir. 1978) (en banc), overruled on other grounds  by Crooker v. Bureau
of Alcohol, Tobacco & Firearms, 670  F.2d 1051, 1053 (D.C. Cir. 1981)
(en banc). FOIA was  enacted to promote honesty and reduce waste in
government  by exposing an agency's performance of its statutory
duties to  public scrutiny. See United States Dep't of Justice v.
Report- ers Comm. for Freedom of the Press, 489 U.S. 749, 772-73 & 
n.20 (1989). "The basic purpose of FOIA is to ensure an  informed
citizenry, vital to the functioning of a democratic  society, needed
to check against corruption and to hold the  governors accountable to
the governed." Robbins Tire, 437  U.S. at 242. As we have observed in
the past, the delay  caused by permitting the government to raise its
FOIA  exemption claims one at a time interferes both with the 
statutory goals of "efficient, prompt, and full disclosure of 


Justice, 823 F.2d 574, 580 (D.C. Cir. 1987) (quoting Jordan,  591 F.2d
at 755), and with "interests of judicial finality and  economy." Id.
(quoting Holy Spirit Ass'n v. CIA, 636 F.2d  838, 846 (D.C. Cir.
1980)). Requiring the simultaneous invo- cation of exemptions also
respects the general principle that  appellate courts do not normally
consider issues that were  neither raised nor decided below. See Ryan,
617 F.2d at 789;  Jordan, 591 F.2d at 779. We note that other circuits
also  require the government to assert all exemptions in the origi-
nal district court proceedings. See, e.g., Crooker v. United  States
Parole Comm'n, 760 F.2d 1, 2 (1st Cir. 1985); Fendler  v. United
States Parole Comm'n, 774 F.2d 975, 978 (9th Cir.  1985).


Although not its primary argument here, the DOJ suggests  that it
adequately raised other FOIA exemptions before the  district court.
Yet the DOJ acknowledges that it did not  "formally" invoke other FOIA
exemptions in the original  district court proceedings. We have said
explicitly in the past  that merely stating that "for example" an
exemption might  apply is inadequate to raise a FOIA exemption. See
Ryan,  617 F.2d at 792 n.38a. Instead the government must assert  the
exemption in such a manner that the district court can  rule on the
issue. See id. Nevertheless, the DOJ maintains  that references to
other exemptions made in its motion for  summary judgment and in the
Hull and Boseker Declarations  were adequate to preserve those


A review of the record demonstrates that, while those  filings all
mentioned the potential applicability of other ex- emptions, the DOJ
has to date made no attempt to substan- tiate those claims. Nor has
the government even been con- sistent in specifying which other
exemptions would apply.  Ultimately, after reprocessing Maydak's FOIA
request in  the days immediately prior to oral argument, the EOUSA 
withheld requested documents pursuant to Exemptions 2, 3,  5, 7(C),
7(D), and 7(E). In its brief before us, however, the  DOJ claimed the
applicability of Exemptions 3, 5, 6, 7(C),  and 7(D). Meanwhile, the
DOJ's motion for summary judg- ment suggested only Exemptions 3, 5,
and 7(D) as possibili- ties; the Hull Declaration offered that


7(C) and 7(D) "may be applicable"; and the Boseker Decla- ration
asserted conclusorily and without elaboration that all  the requested
records were subject to Exemptions 3, 4, 5, 6,  7(C), 7(D), 7(E), and
7(F). Neither declaration made any  attempt to substantiate the
applicability of other exemptions,  and the DOJ has never, at any
time, offered further support  for such claims. These cursory,
equivocal, and inconsistent  assertions are clearly inadequate to the
task. The district  court had nothing upon which to rule one way or
the other  with respect to the applicability of other FOIA exemptions.
 Accordingly, under the standard articulated in Ryan, the  DOJ did not
adequately assert other FOIA exemptions in  the proceedings below.


Indeed, unlike in many of the cases it cites as supporting a 
remand--cases in which the DOJ merely fell short in its good  faith
attempts to carry its burden of proof with respect to  other asserted
exemptions, see, e.g., North v. Walsh, 881 F.2d  1088, 1100 (D.C. Cir.
1989); Bevis, 801 F.2d at 1390--here  the DOJ does not even claim that
it tried to satisfy that  burden. Instead, the DOJ maintains that it
should not have  to. The DOJ's primary argument before us is that the 
unique nature of its burden of proof under Exemption 7(A)  relieves it
of the burden of proving its case with respect to  other exemptions it
seeks to assert in the original district  court proceedings. As noted
above, under Robbins Tire and  its progeny, the DOJ satisfies its
burden of proof under  Exemption 7(A) by grouping documents in
categories and  offering generic reasons for withholding the documents
in  each category. See, e.g., Robbins Tire, 437 U.S. at 236;  Bevis,
801 F.2d at 1390; Crooker, 789 F.2d at 66-67. The  DOJ maintains that,
if it has to assert other exemptions  simultaneously with Exemption
7(A), that it will be forced to  produce a Vaughn index, see Vaughn v.
Rosen, 523 F.2d 1136  (D.C. Cir. 1975), to satisfy its burden of proof
with respect to  the other exemptions. The DOJ contends that the mere
act  of producing a Vaughn index for the purpose of substantiat- ing
its invocation of another FOIA exemption will itself  disclose the
very information that the more generalized cate- gorical showing
required for Exemption 7(A) was designed to 


protect, and thereby undermine the very purposes of Exemp- tion 7(A).
To avoid this result, the DOJ seeks a blanket rule  that, if the
government invokes Exemption 7(A) in the origi- nal district court
proceedings, then the government does not  have to claim the
applicability of or satisfy its burden of proof  with respect to any
other exemption until such time as the  government decides that
Exemption 7(A) no longer applies or  a court tells the government that
Exemption 7(A) does not  apply. In the DOJ's view, after the
government or the courts  conclude that Exemption 7(A) is
inapplicable, then the gov- ernment should be allowed to start back at
the beginning in  assessing the applicability of and satisfying its


First and foremost, the statute says nothing that would  indicate that
Exemption 7(A) is so unique. See 5 U.S.C.  s 552(b). Instead, the
statute merely lists several exceptions  to FOIA's general policy of
disclosure of all federal records  not otherwise exempt. See id.
Nothing in the statute, either  express or implied, suggests that
Exemption 7(A) should be  singled out for preferential treatment by
the courts. Exemp- tion 7(A) is simply one exception on a list of
many. Numer- ous cases exist in this and other circuits in which the
govern- ment has asserted Exemption 7(A) and other exemptions at  the
same time, presumably without the dire consequences the  DOJ alleges
here. See, e.g., Manna v. United States Dep't of  Justice, 51 F.3d
1158, 1162 & n.4 (3d Cir. 1995); Mapother v.  Department of Justice, 3
F.3d 1533, 1536 (D.C. Cir. 1993).


Moreover, despite the DOJ's concerns, the government  does not
necessarily have to produce a Vaughn index to  justify denying a FOIA
request under other exemptions,  either. Specific holdings of this
court and the Supreme Court  permit the satisfaction of the
government's burden of proof  under many of the other exemptions
claimed here through  generic, categorical showings similar to that
for Exemption  7(A). See, e.g., United States Dep't of Justice v.
Landano,  508 U.S. 165, 179-80 (1993) (discussing circumstances in 
which the government can substantiate a claim of Exemption  7(D)
generically); Reporters Comm. for Freedom of the  Press, 489 U.S. at


categorical approach to Exemption 7(A) is appropriate for  Exemption
7(C), and citing Federal Trade Comm'n v. Grolier  Inc., 462 U.S. 19
(1983), as establishing the same for Exemp- tion 5); Church of
Scientology v. Internal Revenue Service,  792 F.2d 146 (D.C. Cir.
1986) (permitting the IRS to support  its Exemption 3 claim
generically with affidavits instead of a  Vaughn index). Indeed, in
Church of Scientology, we recog- nized that "when ... a claimed FOIA
exemption consists of a  generic exclusion, dependent upon the
category of records  rather than the subject matter which each
individual record  contains, resort to a Vaughn index is futile."
Church of  Scientology, 792 F.2d at 152. To that end, on other
occasions,  based upon the circumstances at hand, we have upheld the 
government's assertion of FOIA exemptions other than 7(A)  based on
something less than a Vaughn index. See, e.g.,  Brinton v. Department
of State, 636 F.2d 600, 606 (D.C. Cir.  1980) (upholding invocation of
Exemption 5 on the basis of  affidavits and no Vaughn index).


Given the posture of this case, we are in no position to  decide
whether affidavits alone would have sufficed to sub- stantiate claims
of other exemptions by the government here.  Nevertheless, some of the
categories identified by the Hull  Declaration for purposes of
Exemption 7(A) are of a nature  which would lend themselves to generic
and categorical justi- fication under other exemptions. For example,
the Hull  Declaration identified among the requested documents  "grand
jury materials," which the DOJ could have claimed  were also protected
by FOIA Exemption 3 and Federal Rule  of Criminal Procedure 6(e); and
"attorney client/work prod- uct materials," which the government could
have asserted fell  within FOIA Exemption 5. Yet before us the DOJ
concedes  that it did not even attempt to substantiate its claims with
 respect to these other exemptions. The DOJ's only justifica- tion for
that failure was its insistence that such assertions  would have
required it absolutely to produce a Vaughn index,  an excuse plainly
contradicted by the above-mentioned prece- dents.


The DOJ may be correct that, in some cases, a Vaughn  index could
disclose too much and undermine these goals, 


particularly where trial or equivalent administrative hearing  has not
yet occurred. See Solar Sources, Inc. v. United  States, 142 F.3d
1033, 1040 (7th Cir. 1998) (recognizing this  concern); Curran v.
Department of Justice, 813 F.2d 473, 475  (1st Cir. 1987) (same). In
fact, the same could be said with  respect to other exemptions as
well. See Hayden v. National  Sec. Agency, 608 F.2d 1381, 1384-85,
1390 (D.C. Cir. 1979)  (acknowledging similar objections with respect
to substantiat- ing withholding under Exemptions 1 and 3). And in FOIA
 cases, there is always the possibility that the district court  may
conclude that the affidavits offered are inadequate to  satisfy the
government's burden of proof. In such a case, the  government can
still request that the court deny a plaintiff's  request for a Vaughn
index in favor of more detailed affida- vits, or that the court review
the index or the requested  documents in camera, on the grounds that
the production and  disclosure of a Vaughn index will in fact disclose
the very  information the government seeks to protect. In other 
words, the government has mechanisms by which it can  accomplish the
goal of protecting sensitive information while  at the same time
satisfying its burden of proof with respect to  other exemptions in
the original district court proceedings.


Despite the bulk of precedent contradicting its position, the  DOJ
contends that our opinion in Senate of Puerto Rico, 823  F.2d at
580-81, supports its characterization of Exemption  7(A) as meriting
unique treatment. In Senate of Puerto Rico,  while the district court
was in the process of considering  motions for summary judgment with
respect to Exemption  7(A), the relevant criminal trials ended with
guilty verdicts.  The DOJ by affidavit acknowledged that Exemption
7(A) no  longer applied, and the district court said that the agency 
could present evidence to demonstrate that the requested  documents
were properly withheld under other exemptions.  Upon review, after
discussing at length the competing public  policy concerns, we
concluded only that the district court did  not abuse its discretion
in its handling of the case. See id.  We can find nothing in Senate of
Puerto Rico that should be  construed as supporting the proposition
that, when the gov- ernment withdraws its reliance on Exemption 7(A)


district court has reached a final decision and an appeal has  been
filed, the appropriate course of action is necessarily  remand to the
agency for reprocessing of the FOIA request  in question. Accordingly,
we conclude not only that the DOJ  did not genuinely assert exemptions
other than Exemption  7(A) in the court below, but also that it had no
legitimate  excuse for its failure to do so.


We have recognized two exceptions for unusual situations,  largely
beyond the government's control: specifically, ex- traordinary
circumstances where, from pure human error, the  government failed to
invoke the correct exemption and will  have to release information
compromising national security or  sensitive, personal, private
information unless the court al- lows it to make an untimely exemption
claim; and where a  substantial change in the factual context of the
case or an  interim development in the applicable law forces the
govern- ment to invoke an exemption after the original district court 
proceedings have concluded. See id. (relying on Jordan, 591  F.2d at
780). As to the first of these, DOJ does not claim  that human error
was the cause of its failure to assert other  FOIA exemptions; and as
to the second, the only change in  this case is the simple resolution
of other litigation, hardly an  unforeseeable difference.


The DOJ contends that the existence of at least the first  round of
Maydak's collateral attacks made the possibility of a  new trial
sufficient to justify the continued application of  Exemption 7(A).
Although Maydak still has collateral at- tacks pending just like those
that existed at the time the  EOUSA reprocessed his FOIA request, the
DOJ suggests  that the Third Circuit's May 27, 1999, decision
regarding  Maydak's motion for a new trial rendered sufficiently de 
minimis the likelihood that further collateral attacks might  succeed,
and thereby reduced the potential for future enforce- ment
proceedings, so that the government could no longer  justify
withholding under Exemption 7(A). In other words,  according to the
DOJ, the Third Circuit's May 27, 1999, order  affirming the district
court's decision to dismiss Maydak's  motion for a new trial
represents a substantial change in  circumstances, both factual and


FOIA request. The DOJ offers no analysis, however, as to  why that
particular decision crossed any such threshold.  Moreover, the DOJ's
argument about the decreasing likeli- hood that Maydak's attacks on
his conviction will succeed is  inconsistent with the concern,
expressed both in its brief and  at oral argument, that Maydak will
use the requested records,  once released, to craft new and improved
challenges against  his conviction and sentence. The law of the case
created by  the Third Circuit's denial of Maydak's motion for new
trial  expressing one legal theory would not preclude that court  from
granting a motion for new trial based on a different  legal theory
derived from the requested documents. Accord- ingly, we hold that
there has been no substantial change in  the factual or legal context
of this case, and thus that there is  no reason for us to deviate from
our usual rule of requiring  the government to assert all its FOIA
exemption claims in the  original district court proceedings.


In a final effort to obtain a remand, the DOJ argues that  public
policy concerns about disclosing information that might  otherwise be
exempt require this court to exercise its discre- tion under 28 U.S.C.
s 2106 to remand the case for further  consideration of the
applicability of other FOIA exemptions.  That provision provides that
"[any] court of appellate jurisdic- tion may affirm, modify, vacate,
set aside or reverse any  judgment ... and may remand the cause ... as
may be just  under the circumstances." 28 U.S.C. s 2106 (1994). We 
remand pursuant to 28 U.S.C. s 2106 when doing so best  serves such
interests as judicial finality and economy and  avoiding just the sort
of delay that is inappropriate in FOIA  cases, see, e.g.,
Trans-Pacific Policing Agreement v. United  States Customs Serv., 177
F.3d 1022, 1028 (D.C. Cir. 1999), or  basic justice and fairness. See
Powell v. United States  Bureau of Prisons, 927 F.2d 1239, 1243 (D.C.


Our precedents applying 28 U.S.C. s 2106 do not support  the DOJ's
argument. In Trans-Pacific, for example, after  concluding that the
district court had an affirmative duty to  consider sua sponte whether
the agency could have segregat- ed the exempt portions of the
requested records despite the  plaintiff's failure to expressly
suggest such action, we re-


manded the case because, otherwise, the plaintiffs could  merely file
another, more specific FOIA request, which would  merely result in a
new lawsuit, wasting time, expense, and  judicial resources. See
Trans-Pacific, 177 F.3d at 1023,  1027-29. In the present case, the
DOJ does not allege that  the district court failed to consider an
issue that it properly  should have; moreover, the waste in time,
expense, and  judicial resources is more likely to occur if we grant
the  remand that the DOJ seeks than if we deny it.


Similarly, in Powell, this court considered the situation of a  pro se
prisoner plaintiff appealing the district court's conclu- sion that an
internal agency manual was wholly exempt and  not segregable under
FOIA Exemption 2. The court appoint- ed an amicus curiae to represent
the plaintiff on appeal, and  the amicus located an unpublished
opinion in another FOIA  case which demonstrated that portions of the
manual had  already been released. This court exercised its discretion
to  grant a remand as serving "the interests of justice and  fairness"
and the purposes of FOIA on the grounds that the  unpublished opinion
was directly relevant to the plaintiff's  claim that the manual was
segregable, yet was unavailable to  him at the time of the district
court proceedings. Powell, 927  F.2d at 1243. The equities of the
present case are not  comparable. The DOJ was not demonstrably unable
to prove  its assertion of other FOIA exemptions; it simply chose not 


The DOJ again raises Senate of Puerto Rico as an example  of this court
exercising its discretion under 28 U.S.C. s 2106  to allow the
government to invoke other FOIA exemptions  after Exemption 7(A) was
deemed no longer to apply. Con- trary to the DOJ's argument, however,
in that case, we  explicitly left open the applicability of 28 U.S.C.
s 2106 in a  case such as this one. See Senate of Puerto Rico, 823
F.2d at  581. Moreover, we explicitly said that "[w]e will not allow
an  agency 'to play cat and mouse by withholding its most  powerful
cannon until after the District Court has decided the  case and then
springing it on surprised opponents and the  judge.' " Id. at 580
(quoting Grumman Aircraft Eng'g Corp.  v. Renegotiation Bd., 482 F.2d
710, 722 (D.C. Cir. 1973), in 


which this court upheld an agency's motion for rehearing in  which it
raised for the first time a claim of executive privi- lege).


The DOJ's expressed concerns about public policy are so  general as to
apply in virtually all situations in which the DOJ  declined for
whatever reason to raise one or more FOIA  exemptions the first time
around. The record before us  offers no more direct evidence of the
applicability of other  exemptions than the general and conclusory
assertions of the  Hull and Boseker Declarations. There is simply
nothing in  the record to substantiate the DOJ's claims that dire
conse- quences will flow from the release of the requested docu-
ments. Furthermore, the DOJ's repeated statements that  other
specified FOIA exemptions might apply, coupled with  its abject
failure even to try to substantiate those assertions  generically
through affidavits, strongly suggests the sort of  tactical
maneuvering at a plaintiff's expense that we have  explicitly
rejected. If anything, the notions of judicial finality  and economy,
avoiding delay, and fairness prominent in our  s 2106 jurisprudence
dictate an order in Maydak's favor.  Accordingly, we decline to
exercise our discretion under that  provision to remand the case for


Conclusion


Because the DOJ failed to raise the other exemptions upon  which it
wished to rely in the original district court proceed- ings, and
because the DOJ has offered no convincing reason  why it could not
have done so, we deny the government's  motion for remand, reverse the
district court's judgment, and  order the release of all requested
documents to the appellant.


So ordered.