218 F.3d 760 (D.C. Cir. 2000)
Keith Maydak Appellantv.United States Department of Justice, Appellee
No. 98-5492
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2000Decided July 18, 2000

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:


1
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 government originally denied Maydak's FOIA request by invoking 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. § 552(b)(7)(A) (1994).  The district court granted summary 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

2
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. § 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").


3
On November 15, 1994, the EOUSA by letter denied Maydak'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 purposes ... 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. § 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 fraudulent 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 § 303  (1994).  Another recognized goal of Exemption 7(A) is to  prevent litigants from identifying and intimidating or harassing witnesses.  See Robbins Tire, 437 U.S. at 239-40.  In its  denial letter, the EOUSA stated that "portions of the information" contained in Maydak's file were "being considered in  connection with" his pending appeal, and thus that the government 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 longer applied.


4
On August 23, 1996, Maydak filed in the Western District  of Pennsylvania a motion pursuant to 28 U.S.C. § 2255 to  vacate his sentence.  Maydak had waived his right to counsel  at sentencing.  In his § 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 dismissed Maydak's § 2255 motion.  In November 1996, Maydak 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 Exemption 7(A) grounds because of the pending § 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.


5
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 proceedings" pending with which release of the requested documents  could interfere.  The DOJ maintained that Exemption 7(A)  continued to apply because the proceedings addressing Maydak's post-conviction motions (including but not limited to the  August 23, 1996, § 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 requested documents could interfere with the government's ability to  prosecute him again.


6
To support its argument that disclosure would interfere  with those ongoing proceedings and to satisfy the government'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 government 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).


7
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 affirmed 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 subsequently denied on November 29, 1999.  See Maydak v. United States, 120 S. Ct. 556 (1999).


8
Additionally, on October 22, 1997, Maydak filed in the  Third Circuit a motion for leave to file another § 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 disposed of Maydak's motion to file another § 2255 petition on  January 11, 2000.


9
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 proceedings 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 sentence 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.


10
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 Exemption 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.


11
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 § 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, confirming 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  exemptions might apply.


12
On November 23, 1999, we dismissed as moot the government'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. § 552(b)(2),  (b)(3), (b)(5), (b)(7)(C), (b)(7)(D), and (b)(7)(E) (1994), in withholding 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

13
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 request.  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. Reporters 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  information," Senate of Puerto Rico v. United States Dep't 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 invocation 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 original 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).


14
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 issues.


15
A review of the record demonstrates that, while those  filings all mentioned the potential applicability of other exemptions, the DOJ has to date made no attempt to substantiate those claims.  Nor has the government even been consistent 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 judgment suggested only Exemptions 3, 5, and 7(D) as possibilities;  the Hull Declaration offered that Exemptions 3, 4, 5, 6, 7(C) and 7(D) "may be applicable";  and the Boseker Declaration 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.


16
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 substantiating its invocation of another FOIA exemption will itself  disclose the very information that the more generalized categorical showing required for Exemption 7(A) was designed to protect, and thereby undermine the very purposes of Exemption 7(A).  To avoid this result, the DOJ seeks a blanket rule  that, if the government invokes Exemption 7(A) in the original 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 government should be allowed to start back at the beginning in  assessing the applicability of and satisfying its burden under  other exemptions. We disagree.


17
First and foremost, the statute says nothing that would  indicate that Exemption 7(A) is so unique.  See 5 U.S.C.  § 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.  Exemption 7(A) is simply one exception on a list of many.  Numerous cases exist in this and other circuits in which the government 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);  Map other v.  Department of Justice, 3 F.3d 1533, 1536 (D.C. Cir. 1993).


18
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 777-80 (holding that the Robbins Tirecategorical 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 Exemption 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 recognized 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).


19
Given the posture of this case, we are in no position to  decide whether affidavits alone would have sufficed to substantiate 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 justification 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 product 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 justification 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 precedents.


20
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 substantiating 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 affidavits, 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.


21
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 government withdraws its reliance on Exemption 7(A) after the 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.


22
We have recognized two exceptions for unusual situations,  largely beyond the government's control:  specifically, extraordinary 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 allows 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 government 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.


23
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 attacks 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  minim is the likelihood that further collateral attacks might  succeed, and thereby reduced the potential for future enforcement 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 legal, governing Maydak's 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 likelihood 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.  Accordingly, 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.


24
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 discretion under 28 U.S.C. § 2106 to remand the case for further  consideration of the applicability of other FOIA exemptions.  That provision provides that "[any] court of appellate jurisdiction 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. § 2106 (1994).  We  remand pursuant to 28 U.S.C. § 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. Cir. 1991).


25
Our precedents applying 28 U.S.C. § 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 segregated the exempt portions of the requested records despite the  plaintiff's failure to expressly suggest such action, we remanded 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.


26
Similarly, in Powell, this court considered the situation of a  pro se prisoner plaintiff appealing the district court's conclusion that an internal agency manual was wholly exempt and  not segregable under FOIA Exemption 2.  The court appointed 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  to try.


27
The DOJ again raises Senate of Puerto Rico as an example  of this court exercising its discretion under 28 U.S.C. § 2106  to allow the government to invoke other FOIA exemptions  after Exemption 7(A) was deemed no longer to apply.  Contrary to the DOJ's argument, however, in that case, we  explicitly left open the applicability of 28 U.S.C. § 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 privilege).


28
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 consequences will flow from the release of the requested documents.  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  § 2106 jurisprudence dictate an order in Maydak's favor.Accordingly, we decline to exercise our discretion under that  provision to remand the case for further proceedings.

Conclusion

29
Because the DOJ failed to raise the other exemptions upon  which it wished to rely in the original district court proceedings, 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.


30
So ordered.

