                           NOT FOR PUBLICATION                           FILED
                                                                          JUL 9 2020
                    UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

                           FOR THE NINTH CIRCUIT

EDWARD DEAN HOHNER,                             No.    18-55886

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-07967-GW-PLA
 v.

UNITED STATES DEPARTMENT OF                MEMORANDUM*
JUSTICE, U.S. Dept. of Homeland Security;
U.S. Customs Service; U.S. Immigration and
Customs Enforcement,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                              Submitted June 11, 2020
                                Pasadena, California

Before: BEA and BADE, Circuit Judges, and Y. GONZALEZ ROGERS,***
District Judge.

      Edward Dean Hohner appeals from a summary judgment in favor of the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      ***
             The Honorable Yvonne Gonzalez Rogers, United States District Judge
for the Northern District of California, sitting by designation.
defendants in his action under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552. We have jurisdiction under 28 U.S.C. § 1291 and review the grant of

summary judgment de novo. Animal Legal Def. Fund v. U.S. Food & Drug

Admin., 836 F.3d 987, 990 (9th Cir. 2016) (en banc) (per curiam). We affirm.

      FOIA confers jurisdiction on district courts to compel agencies to release

“(1) improperly (2) withheld (3) agency records.” GTE Sylvania, Inc. v.

Consumers Union of U.S., Inc., 445 U.S. 375, 384 (1980) (citation omitted). An

agency is not required to produce responsive documents if they fit within one of

nine statutory exemptions. See 5 U.S.C. § 552(b). An agency also properly

withholds documents that are subject to an injunction prohibiting their release

because, under those circumstances, the agency has no discretion to exercise. See

GTE Sylvania, 445 U.S. at 386-87. Additionally, there is no indication that

Congress intended FOIA to “require an agency to commit contempt of court in

order to release documents.” Id. at 387.

      After filing this FOIA action, Hohner narrowed its scope to certain

documents withheld by Immigration and Customs Enforcement (“ICE”). The

district court granted summary judgment in favor of the government because the

documents at issue were subject to a 1998 sealing order issued by the United States

District Court for the Southern District of California and that court later issued a

clarifying order stating that the sealing order was intended to prohibit the


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disclosure of those documents. The district court relied on Morgan v. United

States Dep’t of Justice, 923 F.2d 195, 196-98 (D.C. Cir. 1991), and concluded that

the rationale in GTE Sylvania extends to a sealing order when the issuing court

intends for the sealing order to operate like an injunction by prohibiting the

disclosure of sealed records. See id. (citing GTE Sylvania, 445 U.S. at 384, 386-

87).

       The government bears the burden of showing that a sealing order prohibits

disclosure of relevant agency records requested under FOIA. See United States

Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (“[T]he strong presumption in

favor of disclosure places the burden on the agency to justify the withholding of

any requested documents.”). Here, in support of its motion for summary judgment,

the government submitted the district court’s sealing order and the subsequent

order clarifying that the sealing order was intended to prohibit disclosure of the

documents at issue. Considering both the sealing order and the clarifying order,

there was no genuine issue on whether ICE lacked discretion to disclose the

documents and, thus, the agency properly withheld the documents. See GTE

Sylvania, 445 U.S. at 386-87. The district court properly granted summary

judgment.

       AFFIRMED.




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