United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 20, 2017            Decided October 31, 2017

                         No. 16-5263

                  HOWARD BLOOMGARDEN,
                       APPELLANT

                               v.

          UNITED STATES DEPARTMENT OF JUSTICE,
                       APPELLEE


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:12-cv-00843)


    Torrence E.S. Lewis argued the cause for appellant. With
him on the brief were Howard W. Anderson III and Scott Hodes.

     Jaynie Lilley, Attorney, U.S. Department of Justice, argued
the cause for appellee. With her on the brief was Mark B. Stern,
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.

    Before: PILLARD and WILKINS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
                                  2

    Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.

     SILBERMAN, Senior Circuit Judge: Over two decades ago,
the Department of Justice sent a proposed termination letter to
one of its Assistant United States Attorneys (“the Assistant”)
working in the Eastern District of New York (EDNY). The
letter alleged a series of professional inadequacies. Appellant
Bloomgarden, serving a sentence of life imprisonment without
parole, sought a copy of that letter under FOIA.

     The Assistant served as lead prosecutor in an investigation
of a series of crimes committed by Appellant, leading to several
convictions in New York and California.1 After Appellant’s
FOIA suit, most of the approximately 3,600 pages of exhibits
supporting the proposed termination letter were turned over to
Appellant – but not the letter itself. The Appellant hopes that
the content of the letter will somehow help him in contesting his
sentence. The government declined to release the letter pursuant
to Exemption 6 of FOIA, which can protect personal privacy.
The district court, balancing the public interest against the
Assistant’s privacy interest, determined that the latter clearly
outweighed the former and therefore granted summary judgment
for the government. We affirm. We also reject Appellant’s
request that the judgment be modified.



     1
      After entering a guilty plea in the U.S. District Court for EDNY,
Appellant received a sentence of 405 months following his conviction
of multiple offenses. He was subsequently convicted of two murders
in California state court, where he was sentenced to life imprisonment
without parole. The California convictions remain on direct appeal in
the state courts.
                                 3

                                 I.

     The Assistant worked in EDNY for at least three years. His
performance was evidently unsatisfactory. He was terminated
as a probationary employee in 1995, but after he appealed to the
Merit Systems Protection Board (MSPB) on the ground that he
had passed the probationary period, he was reinstated with back
pay. But the U.S. Attorney for EDNY promptly initiated the
process for termination of a permanent employee by sending the
Assistant a proposed termination letter. That letter – the subject
of this dispute – according to the government, “set[s] forth the
charges and specifications,” but it explicitly “states that it is not
a final decision; that a final decision . . . will be made by Dennis
M. Corrigan, Chief of Staff to the Deputy Attorney General; and
that [the Assistant] has the right to reply . . . .” We are told that
three letters were exchanged between the Assistant and Mr.
Corrigan. Two have been withheld under Exemption 6 and are
not sought by Appellant. In the third, which has been released,
Mr. Corrigan cryptically states: “I have forwarded your request
to [the Executive Office for U.S. Attorneys] for action.” It
would appear that the Assistant’s request was for resignation
rather than termination, but we cannot be certain. In any event,
although the Assistant may have filed a notice of appeal with the
MSPB, there is no record of any proceeding and we can infer
that Assistant’s employment terminated in 1997. The Assistant
currently practices law in the state of New York.

     The district judge, after examining the exhibits and
reviewing the letter in camera, determined that the letter only
described “instances of garden-variety incompetence and
insubordination” on the part of a single staff-level attorney, and
that “there is little public interest in a single, largely
unremarkable disciplinary matter regarding a former AUSA
[Assistant] who left government service two decades ago.” This
                                4

did not outweigh the Assistant’s “strong interest in avoiding the
professional embarrassment that disclosure would likely cause.”
This appeal followed. As the material facts are undisputed, we
review this case de novo.

                               II.

     Exemption 6 of FOIA allows the government to withhold
“personnel . . . files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6) (emphasis added). Although Appellant is obviously
motivated by his own litigation, in considering the public
interest, we are not permitted to consider any special interest of
the requestor – rather we must consider only the interest of
members of the general public in learning “what their
government is up to.” U.S. Dep’t of Justice v. Reporters
Committee for Freedom of the Press, 489 U.S. 749, 773 (1989).

     To be sure, we have said that there is a substantial public
interest in the “potential innocence of individuals sentenced to
death,” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1176 (D.C.
Cir. 2011), which supported the legitimacy of a FOIA request
for potentially exculpatory material concerning a pending death
sentence. But as the circumstances here differ materially from
those of Roth, we find the public-interest rationale of that case
inapposite.

     Appellant argues that prosecutors have a uniquely powerful
role among government employees, even as compared with
other lawyers in the Justice Department, and therefore that the
public interest in this disciplinary process is significant –
particularly since the Assistant contributed to a capital
                                5

prosecution.2 Although this request is for only one prosecutor’s
grounds for termination, it is claimed that it will give the public
a road map to the Department’s disciplinary policy relating to
prosecutors, and that the mass of exhibits that have been
disclosed suggests that the Assistant must have engaged in
severe misconduct over a relatively long period of time – at least
three years – suggesting a certain departmental laxness.

     As to the Assistant’s privacy interest, Appellant argues he
is not a private citizen whose personnel records are possessed by
the government; instead, the Assistant was a government
employee who should be entitled to a lesser degree of privacy.
Cf. Fund for Constitutional Gov’t v. Nat’l Archives & Records
Serv., 656 F.2d 856, 864 (D.C. Cir. 1981).

     Appellant, therefore, insists that the district judge, in
balancing the public interest against the Assistant’s privacy
interest, was erroneous. He points out that the “clearly
unwarranted” phrase in Exemption 6 must be contrasted with the
bare word “unwarranted” in Exemption 7(C). See 5 U.S.C.
§ 552(b)(7)(C) (exempting “records or information compiled for
law enforcement purposes, but only to the extent that the
production of such law enforcement records or information . . .
could reasonably be expected to constitute an unwarranted
invasion of personal privacy”). Indeed, the Supreme Court has
noted that this distinction resulted from deliberate congressional
choice, Dep’t of the Air Force v. Rose, 425 U.S. 352, 378 n.16
(1976), and we have said that “under Exemption 6, the


    2
      We note that while he participated in a “state-federal
investigation” and cooperated with Los Angeles County prosecutors,
the Assistant served as a federal prosecutor in EDNY, where
Appellant did not face capital charges.
                                6

presumption in favor of disclosure is as strong as can be found
anywhere in the Act.” Wash. Post Co. v. U.S. Dep’t of Health
& Human Servs., 690 F.2d 252, 261 (D.C. Cir. 1982).
Moreover, FOIA makes clear that the government bears the
burden of rebutting this presumption. 5 U.S.C. § 552(a)(4)(B).

     Still, we agree with the district court that the substantial
privacy interest in this case outweighs the rather modest public
interest. After all, this letter presenting allegations against the
behavior of the Assistant is over twenty years old. To be sure,
there is no expiration date on either the subject of FOIA requests
or the interests protected by the Act’s exemptions, see Nat’l Sec.
Archive v. CIA, 752 F.3d 460, 464 (D.C. Cir. 2014); Schrecker
v. U.S. Dep’t of Justice, 349 F.3d 657, 666 (D.C. Cir. 2003), but
the letter does not necessarily reveal anything of present
personnel policies, and as a piece of history it is hardly
momentous.

     Even assuming arguendo Appellant is correct that Justice
Department prosecutors are particularly powerful government
lawyers, and that the public interest in how they are restrained
is therefore significant, our examination of the letter in camera
reveals only alleged unprofessionalism of a sort in which any
junior attorney might engage, not allegations of prosecutorial
misconduct or other abuse of a federal prosecutor’s powers.

     The sheer volume of exhibits attached to the letter by no
means supports any different conclusion. The thousands of
pages of exhibits – most of which have been released to
Appellant – are simply documents that the Assistant worked on
and public court records from his cases, used to illustrate points
relevant to the letter; they do not identify or censure any
                                  7

misbehavior.3 That surely is why Appellant quotes none of
them. In short, we think the district court was quite correct in
concluding the letter is not a road map to DOJ policies, but only
an allegation of “garden-variety incompetence and
insubordination.”

     Still, even so, there is undoubtedly some public interest in
disclosure, so we turn to the privacy interest against which the
public interest is to be balanced. We think the privacy interest
is quite substantial. We think so not just because the Assistant
is now a practicing lawyer who would undoubtedly be quite
embarrassed by disclosure of a proposed discipline letter from
many years ago. Cf. Kimberlin v. U.S. Dep’t of Justice, 139
F.3d 944, 949 (D.C. Cir. 1998); Dunkelberger v. U.S. Dep’t of
Justice, 906 F.2d 779, 781 (D.C. Cir. 1990). The aspect of the
letter that concerns us the most is that it contains mere
allegations; it was never tested, nor was it ever formally adopted
by the deputy-attorney general’s office. It appears there was
some sort of settlement leading to the Assistant’s resignation,
but we cannot determine how many of the specific allegations
were endorsed by the deputy-attorney general’s office. We have
previously indicated our concern with disclosure of allegations.

     3
       The released pages include, for example, “Attorney’s case
notes,” “facsimile to AUSA from Secret Service providing synopsis
of information about investigation of a third party individual,”
“affidavit of mailing form,” “handwritten notes describing particulars
of a case against a third party,” “Photocopies of checks,” “Mobile
Transaction Log of a third party individual,” “Fax transmission
report,” “Faxed Transcript of an audio recording of an informant and
a third party,” “List of Email addresses,” and dozens of “Blank Page”
entries. Any inference of a correlation between quantity of exhibits
and the existence of misconduct, or severity thereof, thus appears
unfounded.
                                 8

Even those “accused of criminal conduct . . . are entitled to
move on with their lives without having the public reminded of
their alleged but never proven transgressions.” ACLU v. U.S.
Dep’t of Justice, 750 F.3d 927, 933 (D.C. Cir. 2014).

     Alternatively, Appellant contends that the Assistant placed
the letter into the public domain, thus waiving his privacy
interest. We have held that Appellant carries the burden of
production to demonstrate that this is so. Davis v. U.S. Dep’t of
Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992). As we noted,
there are some hints in the record that the Assistant may have,
once again, filed a notice of appeal with the MSPB – but nothing
indicates that such an appeal was pursued, nor is there any
record of the letter or any material referring to the letter that was
made public. Appellant’s waiver argument is therefore easily
rejected.

     In sum, we think privacy interests sufficiently outweigh the
limited public interest in the letter to make its disclosure clearly
unwarranted.

                              * * *

     Appellant also seeks reform of the judgment below, which
dismissed his amended complaint with prejudice. He contends
that because the District Court ordered release of over 3,000
pages of documents in prior rulings, its ruling should show that
he “partially prevailed in this action, thereby entitling him to
recover costs” under the Federal Rules of Civil Procedure.
According to Appellant, the negative language in the judgment
is misleading: he sought the release of documents, and he in
fact succeeded with respect to many of them.
                                 9

     It is true that Rule 54 allows costs “to the prevailing party.”
Fed. R. Civ. Pro. 54(d)(1). But for purposes of cost recovery
under FOIA, the form of the judgment does not determine which
party prevailed. See 5 U.S.C. § 552(a)(4)(E); Davy v. CIA, 456
F.3d 162, 164-66 (D.C. Cir. 2006). In any event, the
government concedes that the earlier release of documents need
not be mentioned in the most recent judgment for plaintiff to be
eligible for cost recovery. Since the issue of costs is not yet
before us, we do not wish to speculate as to whether they may
ultimately be granted or denied. And as for the fact that the
judgment does not reflect the previous orders releasing
documents, that is just as the Rules command: “A judgment
should not include . . . a record of prior proceedings.” Fed. R.
Civ. Pro. 54(a). There is thus no basis upon which to grant
Appellant’s plea for modification of the judgment.

                              * * *

     Because the Department of Justice has carried its burden of
demonstrating that disclosure of the proposed termination letter
is “clearly unwarranted” given the privacy interest at stake, and
because no grounds exist for modification of the judgment
below, we affirm in full.

                                                       So ordered.
