United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 15, 2011               Decided July 24, 2012

                        No. 10-5434

               UTAHAMERICAN ENERGY, INC.,
                      APPELLEE

                              v.

                  DEPARTMENT OF LABOR,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:08-cv-01791)


     Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellant. With her on the briefs were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.

     J. Michael Klise argued the cause for appellee. With him
on the brief was Thomas C. Means.

    Before: TATEL and GARLAND, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
                                2

    Opinion for the Court filed PER CURIAM.

     PER CURIAM: UtahAmerican Energy brought this action
against the Department of Labor under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, seeking documents
related to government investigations of a collapse at one of its
mines. The Department invoked a number of FOIA exemptions,
some of which UtahAmerican did not contest. The district court
granted summary judgment for the Department on the
uncontested exemptions, but it ruled in favor of UtahAmerican
on the disputed exemptions and ordered it to produce documents
covered by those exemptions. The court also ordered the
Department to produce documents that were the subject of an
earlier-filed FOIA suit that was pending before another district
court.

     The Department appealed, asserting that the district court
erred in rejecting its defenses under, inter alia, FOIA Exemption
7(A), and in ordering the release of the documents at issue in the
other litigation. During the pendency of this appeal, the
Department’s defense under Exemption 7(A) has become moot
because its basis for asserting that exemption has disappeared,
thus requiring it to produce many of the contested documents
that were protected by 7(A) alone. It has also become apparent
that most of the remaining documents are independently
protected by another exemption, Exemption 7(C), that the
district court ruled was applicable to this case. Finally, we
conclude that the court should have left disposition of the
balance of the remaining documents to the court hearing the
earlier-filed suit.

                                I

    In August 2007, a collapse at the Crandall Canyon Mine in
Utah trapped and eventually killed six miners. In the days that
                               3

followed, three rescue workers were killed in a subsequent
collapse as they attempted to reach the victims. The Department
of Labor (DOL) conducted two separate inquiries following the
incident: the Mine Safety and Health Administration (MSHA),
a component agency of DOL, undertook an investigation to
determine the causes of the collapse and to ascertain whether
any laws or regulations had been violated; and DOL set up an
Independent Review Team (IRT) to investigate MSHA’s own
conduct in the events leading up to and following the collapse.
Both investigations resulted in published reports now available
to the public. The MSHA report recommended various
regulatory sanctions against the mine’s owners and operators,
and the U.S. Attorney for the District of Utah opened a criminal
investigation into the matter.

     UtahAmerican Energy owns the Crandall Canyon Mine
through a subsidiary. In September 2007, it filed a FOIA
request with MSHA, seeking all documents related to the
Crandall Canyon Mine. MSHA provided a partial response that
included some requested material and asserted various statutory
exemptions regarding other documents and records. MSHA also
asserted, however, that because of the broad scope of
UtahAmerican’s request, it had not had time to complete a
search for all responsive material. On October 17, 2008,
UtahAmerican filed a FOIA suit to compel MSHA to complete
the search and to produce responsive material, see Compl.,
UtahAmerican Energy, Inc. v. Mine Safety & Health Admin.,
No. 08-01780 (D.D.C. Oct. 17, 2008). Those proceedings
remain ongoing.

    Previously, in August 2008, UtahAmerican had filed a
separate FOIA request with the Department of Labor, MSHA’s
parent agency. That request, in relevant part, sought transcripts
of all interviews conducted by the IRT, as well as all other
materials referenced in the IRT’s final report. On October 20,
                                4

2008 -- three days after it brought its first lawsuit against
MSHA -- UtahAmerican brought the instant suit against the
Labor Department to compel production of those and other
requested documents.       Soon thereafter, the Department
responded with a Vaughn index indicating that it was
withholding the IRT interview transcripts in full pursuant to,
inter alia, FOIA Exemptions 5, 7(A), and 7(C). J.A. 97-158; see
5 U.S.C. § 552(b)(5) (exempting records that would not be
“available by law to a party . . . in litigation with the agency”),
(7)(A) (exempting law enforcement records, the production of
which “could reasonably be expected to interfere with
enforcement proceedings”), (7)(C) (exempting law enforcement
records, the production of which “could reasonably be expected
to constitute an unwarranted invasion of personal privacy”);
Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). The
Department noted, however, that it had not searched for material
that was already the subject of UtahAmerican’s earlier request
to MSHA. This included “transcripts of the interviews
conducted by . . . MSHA’s investigation team.” UtahAmerican
Energy, Inc. v. Dep’t of Labor, 700 F. Supp. 2d 99, 105 (D.D.C.
2010); see Decl. of George M. Fesak ¶¶ 9-10 (J.A. 43-45). The
parties filed cross motions for summary judgment, with
UtahAmerican opposing the Department’s withholding of both
the IRT and MSHA interview transcripts.

     The district court found that neither Exemption 5 nor
Exemption 7(A) supported withholding the IRT transcripts,
UtahAmerican, 700 F. Supp. 2d at 106-10, and it therefore held
that the Labor Department was required to “disclose the IRT
interview material it has withheld under Exemptions 5 and
7(A),” id. at 110. But the Department had also invoked other
FOIA exemptions that the court found UtahAmerican did not
dispute. Id. at 106-07 & n.6. One of these was Exemption
7(C). Id. at 104. Accordingly, the court held that the
Department was “entitled to withhold information under FOIA
                                5

Exemption[] . . . 7(C),” and it granted the Department’s motion
for summary judgment as to that defense. Id. at 110. Here is the
confusing part, which we address more fully below: the
Department asserted that some of the IRT transcripts were
covered by Exemptions 5, 7(A), and 7(C) -- so it is unclear
whether the court actually ordered that those transcripts be
disclosed.

     As to the MSHA transcripts, the court initially agreed with
the Department that it should not resolve the applicability of
FOIA to those documents because litigation regarding them was
currently pending before a different district judge.
UtahAmerican, 700 F. Supp. 2d at 103 n.2, 106 n.5. Seven
months later, however, the court changed course, finding
“[u]pon further reflection” that “the issue of whether DOL
fulfilled its obligations under FOIA is properly before this court
and is distinct from MSHA’s own obligations.” Reconsideration
Order at 2 & n.1, No. 08-1791 (D.D.C. Nov. 2, 2010). Without
resolving the merits of any of the Department’s specific
exemption claims, the court held that DOL had essentially
defaulted by not providing a Vaughn index explaining its
reasons for withholding the MSHA transcripts. Finding DOL’s
explanation -- that the materials were the subject of another
FOIA suit before another judge -- to be inadequate, the court
ordered production of the MSHA transcripts.

     DOL filed a timely notice of appeal with respect to both the
IRT and MSHA transcripts. As to the IRT transcripts, the
Department contended that the district court erred in finding that
they were not protected from disclosure by Exemption 5 or
Exemption 7(A); it also notes that the court found some of them
to be covered by Exemption 7(C). As to the MSHA transcripts,
the Department argues that the court abused its discretion by
addressing a matter pending before another judge, and then
ordering that the Department disclose the transcripts without
                                  6

permitting it to argue that they were covered by various
exemptions.1 We discuss the IRT transcripts in Part II and the
MSHA transcripts in Part III.

                                  II

     The Department of Labor invoked FOIA Exemption 7(A)
as grounds for withholding the entirety of the transcripts of the
testimony of all 59 witnesses interviewed by the IRT. For 47
out of the 59 witnesses, Exemption 7(A) was the only exemption
invoked as grounds for withholding the transcripts in full.
(Other exemptions were invoked for withholding specific
portions of those transcripts.) Exemption 7(A) authorizes
agencies to withhold records “compiled for law enforcement
purposes” if release of such records “could reasonably be
expected to interfere with enforcement proceedings.” 5 U.S.C.
§ 552(b)(7)(A). In support of its claim to Exemption 7(A)
protection, the Department argued that release of the IRT
transcripts would interfere with the U.S. Attorney’s criminal
investigation of the collapse at the Crandall Canyon Mine, as
well as with ongoing civil enforcement proceedings. The
district court rejected this argument, holding that Exemption
7(A) did not protect the transcripts from disclosure.

     Some time after the oral argument in this appeal,
UtahAmerican’s subsidiary reached a plea agreement with the
government regarding violations of federal mine safety laws at
Crandall Canyon. Thereafter, the Labor Department advised us
that “Exemption 7(A) is no longer needed to protect any civil or
criminal investigation,” and it moved to dismiss that portion of


     1
      The Department argues that the MSHA transcripts are in fact
subject to several FOIA exemptions. Because we agree that the issue
was not properly before the district court, we do not consider whether
those exemptions apply.
                                 7

its appeal. DOL Mot. at 4 (Apr. 19, 2012). UtahAmerican did
not oppose the motion to dismiss. UtahAmerican Resp. at 1
(Apr. 20, 2012). Accordingly, the appeal is moot with respect
to the application of Exemption 7(A), and we will vacate that
part of the district court’s decision. See Humane Soc’y of U.S.
v. Kempthorne, 527 F.3d 181, 184-85 (D.C. Cir. 2008); United
States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). The IRT
transcripts of the testimony of the 47 witnesses as to which the
Department invoked no other exemption must now be
produced -- except to the extent that any partial redactions are
supported by other FOIA exemptions that were upheld by the
district court and not litigated on this appeal.2

     That leaves still to be considered the IRT transcripts of the
12 remaining witnesses. See DOL Mot. at 4-5.3 We directed the
parties to address those documents by post-argument
submissions. See Order (Apr. 27, 2012). In their submissions,
the Labor Department asserts -- and UtahAmerican disputes --
that the transcripts of the 12 witnesses’ testimony are protected
by FOIA Exemption 5, which allows agencies to withhold
“inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency,” 5 U.S.C. § 552(b)(5). See DOL
Resp. at 4 (May 4, 2012); UtahAmerican Resp. at 3 (May 9,
2012); see also Fesak Decl. ¶¶ 26-27 (J.A. 53-54). The
Department’s Exemption 5 argument is based on an “accident


    2
      In the district court, DOL invoked Exemptions 6 and 7(C) as
grounds for redacting portions of the transcripts. Because the court
granted summary judgment in favor of the Department with respect to
those exemptions, see UtahAmerican, 700 F. Supp. 2d at 106-07, they
continue to apply.
    3
      There are a total of 14 such transcripts; two witnesses were
interviewed twice.
                                 8

investigation privilege” that this court has recognized in certain
instances. See Machin v. Zuckert, 316 F.2d 336, 339 (D.C. Cir.
1963); United States v. Weber Aircraft Corp., 465 U.S. 792, 799
(1984).

     We need not decide whether Exemption 5 extends to the
transcripts of the 12 remaining witnesses. As the Labor
Department points out, it appears that the district court granted
summary judgment in its favor as to another exemption for
records compiled for law enforcement purposes, FOIA
Exemption 7(C), a ruling that UtahAmerican has not appealed.
See DOL Resp. at 3 (May 4, 2012); Oral Arg. Recording at 9:08-
:32.4 There is no doubt that in the district court the Department
claimed Exemption 7(C) protection for the entirety of the
transcripts of the 12 witnesses. See Fesak Decl. ¶¶ 26-27, 38
(J.A. 53-54, 59-60) (declaring that the same IRT transcripts are
covered in their entirety by Exemptions 5 and 7(C)); Vaughn
Index at 12-59 (J.A. 108-55). And there is likewise no doubt
that the district court granted summary judgment in favor of the
Department on its Exemption 7(C) defenses. UtahAmerican,
700 F. Supp. 2d at 110.

     The confusing part is that, although the court ruled that the
Department of Labor was “entitled to withhold information
under FOIA Exemption[] . . . 7(C),” it also ruled that the
Department must “disclose the IRT interview material it has
withheld under Exemptions 5 and 7(A).” Id. Because the
transcripts of the 12 witnesses are in the crosshairs of both


    4
     Unlike 7(A), Exemption 7(C) does not require a showing that
production of the law enforcement records could reasonably be
expected to interfere with enforcement proceedings. Instead,
Exemption 7(C) protects against production that “could reasonably be
expected to constitute an unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(7)(C).
                                9

rulings, it is unclear whether the court actually intended to order
the Department to disclose them. UtahAmerican maintains that
the court did so intend. See UtahAmerican Resp. at 4 (May 9,
2012). But if that were what the court intended, it would appear
the court acted without warrant: the government, after all, “need
prevail on only one exemption.” ACLU v. Dep’t of Defense, 628
F.3d 612, 623 n.3 (D.C. Cir. 2011).

     Accordingly, we reverse the judgment of the district court
insofar as it may be construed as directing the Labor Department
to disclose the IRT transcripts that are protected by Exemption
7(C). On remand, the court may clarify its order. If the court
did not intend to order disclosure of those transcripts, that will
be the end of the matter. However, if the court did intend to
order disclosure, and if it renews that order, then it must explain
why the order is consistent with the court’s grant of summary
judgment regarding Exemption 7(C). In that event, the
Department will be free to appeal again on the grounds of both
Exemption 5 and Exemption 7(C).

                                III

     We next address the district court’s order to disclose the
MSHA transcripts. The documents at issue are transcripts of
interviews that MSHA conducted and then shared with the IRT.
See Fesak Decl. ¶ 25 (J.A. 52-53). Those documents are also
the subject of a separate FOIA suit that UtahAmerican had
earlier filed against MSHA before another federal judge in the
District of Columbia. See Compl., UtahAmerican, No. 08-
01780 (Oct. 17, 2008).

    The district court in this case initially agreed with the
Department that it should not address the MSHA transcripts
because “this material is already the subject of an earlier FOIA
                                10

suit plaintiff brought against MSHA.” UtahAmerican, 700 F.
Supp. 2d at 106 n.5. The court further elaborated that:

         For reasons unknown to the Court, plaintiff declined to
         notice these two cases as related even though they arise
         from the same factual events and share common issues
         of fact and law, and thus appear to fall within the
         definition of ‘related’ cases under the Local Rules of
         Civil Procedure. . . . Notwithstanding such a failure,
         UtahAmerican, amazingly, invites this Court to study
         subtle differences between the litigation positions it
         took in these two separate cases because it believes
         those differences may impact the outcome of this
         case. . . . Judicial efficiency alone would militate
         against that curious request.

Id. at 103 n.2. Seven months later, however, the court
reconsidered the issue and concluded that the status of the
transcripts was properly before it, notwithstanding the other
litigation. The court then held that the Department had
defaulted by not providing it with a Vaughn index that explained
the reasons for withholding the MSHA transcripts. Without
resolving the merits of the Department’s specific exemption
defenses, the court ordered production of the MSHA transcripts.
Reconsideration Order at 2-3 & n.3 (J.A. 533-34).

    The district court was right in staying its hand the first time.
We are, of course, mindful that a “district court’s decision
[whether] to decline jurisdiction in favor of an ongoing
proceeding is reviewed for abuse of discretion.” Handy v. Shaw,
Bransford, Veilleux & Roth, 325 F.3d 346, 349 (D.C. Cir. 2003).
But we conclude that the court abused that discretion when it
ordered the government to release the MSHA transcripts. Cf. W.
Gulf Mar. Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721, 730,
732 (5th Cir. 1985) (vacating an injunction when the district
                               11

court “should have stayed, dismissed, or transferred [the
plaintiff’s] action” because a related case was already pending
in another federal court).

      The usual “rule in this circuit has been that ‘[w]here two
cases between the same parties on the same cause of action are
commenced in two different Federal courts, the one which is
commenced first is to be allowed to proceed to its conclusion
first.’” Wash. Metro. Area Transit Auth. v. Ragonese, 617 F.2d
828, 830 (D.C. Cir. 1980) (quoting, inter alia, Speed Prods. Co.
v. Tinnerman Prods., Inc., 171 F.2d 727, 729 (D.C. Cir. 1948));
see Consumers Union of the U.S., Inc. v. Consumer Prod. Safety
Comm’n, 590 F.2d 1209, 1218 (D.C. Cir. 1978) (acknowledging
that “‘[o]rdinarily, the court first acquiring jurisdiction of a
controversy should be allowed to proceed with it without
interference from other courts under suits subsequently
instituted’” (quoting Carbide & Carbon Chems. Corp. v. U.S.
Indus. Chems., Inc., 140 F.2d 47, 49 (4th Cir. 1944))), rev’d on
other grounds, 445 U.S. 375 (1980). To be sure, the decisions
recognizing the first-in-time rule note that “equitable
considerations” may weigh against applying it in particular
cases. Handy, 325 F.3d at 350; Columbia Plaza Corp. v. Sec.
Nat’l Bank, 525 F.2d 620, 627 (D.C. Cir. 1975). But no such
considerations have been asserted in this case.

     The reasons for the rule are manifest. As we have
explained, “[c]onsiderations of comity and orderly
administration of justice dictate that two courts of equal
authority should not hear the same case simultaneously.” Wash.
Metro., 617 F.2d at 830. “‘Sound judicial administration
counsels against separate proceedings, and the wasteful
expenditure of energy and money incidental to separate
litigation of identical issues should be avoided.’” Handy, 325
F.3d at 349 (footnotes omitted) (quoting Columbia Plaza, 525
F.2d at 626); see id. (“In the case of parallel litigation in two
                               12

federal district courts, the ‘general principle is to avoid
duplicative litigation.’” (quoting Colo. River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976))).

     The rationale for allowing the first court to proceed to its
disposition is fully applicable here: we should not expend
judicial resources -- and potentially produce contradictory
decisions -- by allowing the same FOIA plaintiff multiple bites
at the apple. See Beck v. Dep’t of Justice, No. 88-3433, 1991
WL 519827, at *5 (D.D.C. Jan. 31, 1991) (declining to rule on
a FOIA request for certain documents because those documents
overlapped with documents sought in a suit filed in another
court, and “a decision not to defer jurisdiction to [that court]
would require preparation of duplicate summary judgment
motions arguing the propriety of the exemptions [the
government] has asserted and duplicate consideration of those
motions”). UtahAmerican is litigating against both a component
(MSHA) and its parent agency (DOL), seeking orders from two
different judges directing the production of the same documents.
Were both claims to proceed, the respective district courts would
be required to duplicate their efforts. Moreover, the twin claims
could generate contradictory results that could, in turn, generate
dueling appeals. Indeed, at oral argument, counsel for
UtahAmerican conceded that if the other district court were to
determine that the MSHA transcripts were covered by a
particular exemption, UtahAmerican would “be back up here
before you again, sitting at a different table.” Oral Arg.
Recording at 31:00-:25.

    The problem we have identified is particularly acute in
FOIA cases, where multiple components of the same agency
may withhold the same documents on the same grounds, thus
potentially generating multiple lawsuits and appeals raising the
same issues. We see no reason to permit FOIA litigation to
proceed down that path. Nor do we see any reason to permit one
                               13

court to preempt another in the same district from resolving an
issue that was first raised in the other’s courtroom. We will
therefore reverse the judgment with respect to the MSHA
transcripts.

                               IV

     For the foregoing reasons, we reach the following
disposition: First, we dismiss as moot those portions of the
appeal that relate to Exemption 7(A), and vacate those parts of
the district court’s decision that address that exemption. The
Department of Labor must now produce the IRT transcripts of
the 47 witnesses as to which it invoked no exemption other than
7(A), except to the extent that any partial redactions are
supported by other FOIA exemptions that were upheld by the
district court and not litigated on this appeal. Second, we
reverse the judgment of the district court insofar as it may be
construed to direct the Department to disclose the IRT
transcripts of the remaining 12 witnesses that are protected by
Exemption 7(C). Third, we reverse the district court’s judgment
with respect to the MSHA transcripts. Finally, we remand the
case to the district court for further proceedings consistent with
this opinion.

                                                     So ordered.
