     13-2007-cv
     Service Women’s Action Network v. Department of Defense,


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
     ANY PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   20th day of June, two thousand fourteen.
 4
 5   Present:
 6                    BARRINGTON D. PARKER,
 7                    DEBRA ANN LIVINGSTON,
 8                    CHRISTOPHER F. DRONEY,
 9
10                           Circuit Judges,
11   ________________________________________
12
13   Service Women’s Action Network, American Civil
14   Liberties Union, American Civil Liberties Union of
15   Connecticut,
16
17                             Plaintiffs-Appellants,                     13-2007-cv
18
19                    v.
20
21   Department of Defense, U.S.,
22
23                     Defendant-Appellee.*
24   ________________________________________
25
26                                                              D. ZACHARY HUDSON, Bancroft PLLC,
27                                                              Washington, DC (Sandra S. Park and
28                                                              Lenora M. Lapidus, American Civil

     *
      The Clerk of Court is directed to amend the caption to conform to the listing above.
 1                                                           Liberties Union, New York, New York;
 2                                                           Sandra J. Staub, American Civil Liberties
 3                                                           Union of Connecticut, Hartford,
 4                                                           Connecticut; Michael J. Wishnie, Yale Law
 5                                                           School Jerome N. Frank Legal Services
 6                                                           Organization, New Haven, Connecticut, on
 7                                                           the brief), for Plaintiffs-Appellants.
 8
 9                                                           STEVE FRANK (Stuart S. Delery and Leonard
10                                                           Schaitman, on the brief), United States
11                                                           Department of Justice Civil Division,
12                                                           Appellate Staff, Washington, DC (Deirdre
13                                                           M. Daly, United States Attorney, District of
14                                                           Connecticut, New Haven, Connecticut, on
15                                                           the brief), for Defendant-Appellee.
16
17           Appeal from a judgment of the United States District Court for the District of Connecticut

18   (Kravitz, J.).

19           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

20   DECREED that the judgment of the district court is AFFIRMED.

21           The Service Women’s Action Network, the American Civil Liberties Union, and the

22   American Civil Liberties Union of Connecticut (together, “Appellants”) appeal from the District

23   Court’s judgment in favor of the Department of Defense (“DOD”) concerning Appellants’ request,

24   filed pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., for records

25   concerning Military Sexual Trauma – or “MST” – and related conduct in the armed forces. We

26   review an order granting summary judgment de novo, “resolv[ing] all ambiguities and draw[ing] all

27   permissible factual inferences in favor of the party against whom summary judgment is sought.”

28   Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (alterations in original) (internal quotation marks

29   omitted). In addition, we assume the parties’ familiarity with the underlying facts, procedural




                                                      2
 1   history of the case, and issues on appeal, which we reference only as necessary to explain our decision.

 2           Prior to this litigation, Appellants filed a FOIA request with various DOD offices seeking

 3   records concerning the incidence of and response to MST and related conduct in the armed forces.1

 4   When the DOD failed to release responsive records, Appellants filed the instant suit. Following

 5   months of litigation, the DOD moved for summary judgment, in part, on the ground that responding

 6   to Appellants’ request would be unduly burdensome. In their opposition brief, Appellants did not

 7   contest these estimates, but rather contended that the DOD overstated the burden of the search

 8   needed to satisfy the request by ignoring a purportedly narrowed request that Appellants had offered

 9   to the DOD during settlement negotiations. Though the DOD had neither acceded to the new

10   request nor developed a record of the likely burden it would impose, Appellants contended that the

11   request called for only a fraction of the records initially sought and thus could not be rejected as

12   unreasonably broad. In its reply, the DOD argued against consideration of the new request and,

13   relying on Appellants’ estimates, asserted that the new request was still unreasonably broad. After

14   argument on the motion, the District Court granted summary judgment in favor of the DOD, holding

15   that Appellants’ initial request was unreasonably burdensome and declining to “evaluate the

16   reasonableness” of Appellants’ new request due to the insufficiency of the record. See Serv.

17   Women’s Action Network v. Dep’t of Def., 888 F. Supp. 2d 282, 291 (D. Conn. 2012). Appellants

18   filed a motion for reconsideration, which the District Court denied. See id., No. 3:11CV1534 (SRU),

19   2013 WL 1149946 (D. Conn. Mar. 19, 2013). This appeal followed.




     1
     Appellants also filed a FOIA request with the Veterans Administration (“VA”) that resulted in the
     VA being named in this suit, but Appellants and the VA settled those claims.

                                                        3
 1          The DOD argues that we lack jurisdiction over this appeal because Appellants designated

 2   only the District Court’s judgment in their notice of appeal and not its denial of their motion for

 3   reconsideration, in which Appellants asserted the bulk of the arguments before us. See Fed. R. App.

 4   P. 3(c)(1)(B) (“The notice of appeal must . . . designate the judgment, order, or part thereof being

 5   appealed . . . .”); Gonzalez v. Thaler, ––– U.S. –––, 132 S.Ct. 641, 651-52 (2012) (reaffirming Rule

 6   3’s jurisdictional nature). We disagree. Appellants, at a minimum, argued for consideration of their

 7   purportedly narrowed request in their opposition to summary judgment and at oral argument before

 8   the District Court, and the District Court rejected consideration of that request in its order and

 9   judgment on appeal. Thus, we are confident in our jurisdiction over this appeal.

10          That said, we are not persuaded by Appellants’ arguments on appeal. We have repeatedly

11   held that district courts need not consider claims raised for the first time in a brief opposing

12   summary judgment. See, e.g., Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006).

13   Appellants do not dispute that fact; instead, they argue that FOIA’s goal of encouraging the

14   “efficient, prompt, and full disclosure” of government records, Jordan v. U.S. Dep’t of Justice, 591

15   F.2d 753, 755 (D.C. Cir. 1978), demands that FOIA litigants be permitted to pursue requests that

16   have been narrowed during litigation. However, the cases Appellants cite in support of this broad

17   rule are inapposite. See Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022 (D.C.

18   Cir. 1999) (remanding narrowed FOIA request because district court neglected affirmative duty to

19   raise issue of segregability); People for the Am. Way Found. v. U.S. Dep’t of Justice, 451 F. Supp.

20   2d 6, 12 (D.D.C. 2006) (considering narrowed request where the government “unequivocally”

21   consented to the narrowed request during settlement negotiations conducted under the supervision

22   of the district court); Coastal Delivery Corp. v. U.S. Customs Serv., 272 F. Supp. 2d 958 (C.D. Cal.


                                                      4
 1   2003) (rejecting consideration of narrowed request). Moreover, it is doubtful whether permitting

 2   FOIA litigants to narrow their requests at will in the midst of ongoing litigation would not itself

 3   destroy the “prompt” and “efficient” disclosure of government records, as litigants continually test

 4   the permissible breadth of their requests. Consequently, Appellants have failed to demonstrate that

 5   the District Court erred in declining to review their new request and, indeed, in concluding that the

 6   record before it was inadequate to do so. Because Appellants did not contest that their initial request

 7   was unreasonably burdensome, we conclude that the District Court properly granted judgment in

 8   favor of the DOD.

 9          We have considered all of Appellants’ remaining arguments and find them to be without

10   merit. Accordingly, we AFFIRM the district court’s judgment in favor of the DOD.

11

12
13                                                  FOR THE COURT:
14                                                  Catherine O’Hagan Wolfe, Clerk
15
16




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