[00:00:00] Speaker 00: Case number 21-5074, Patrick Eddington, Appellant, versus United States Department of Defense. [00:00:07] Speaker 00: Mr. Topic, Freddie Appellant, Ms. [00:00:09] Speaker 00: Walker, Freddie Eppley. [00:00:12] Speaker 04: Mr. Topic, good morning. [00:00:14] Speaker 01: Good morning, Your Honor. [00:00:16] Speaker 01: Thank you, and may it please the court. [00:00:18] Speaker 01: Appellant agrees with the Defense Department that merely sending a request is insufficient to trigger an agency's response if it was never received. [00:00:26] Speaker 01: At the same time, emails do not typically disappear into the ether [00:00:30] Speaker 01: and therefore evidence that an email was sent is highly probative of whether the email was received, especially when inferences at summary judgment must be resolved in favor of the non-movement. [00:00:41] Speaker 01: I'd like to focus on why the district court erred in relying on the presumption of good faith to resolve a genuine dispute of fact in favor of the department under the specific facts of this case. [00:00:52] Speaker 01: The department has never disputed that if the requests were delivered to its email servers, [00:00:57] Speaker 01: they were received under FOIA regardless of what happened to them after that. [00:01:01] Speaker 01: And it recognized that FOIA requests could be routed to spam folders because it checked them in response to the suit. [00:01:08] Speaker 01: What it has never addressed, however, is whether its email system was configured to automatically delete unread spam after a period of time that passed by the time the department looked for the emails after the suit was filed. [00:01:21] Speaker 01: Therefore, the fact that the emails were not located months after they were sent [00:01:25] Speaker 01: was insufficient to grant summary judgment for several reasons. [00:01:30] Speaker 01: First, under rule 56, inferences must be drawn in favor of the non-movement. [00:01:35] Speaker 01: Instead, the district court inferred that the emails were never received by the department servers from the fact that they were not found months later in anyone's email account. [00:01:43] Speaker 01: That is precisely the opposite of what rule 56 requires. [00:01:48] Speaker 01: Second, the presumption of good faith was inapplicable. [00:01:51] Speaker 01: Under safeguard, which the government cites in its brief, [00:01:54] Speaker 01: The presumption only applies if the agency has adequately investigated and described the relevant circumstances for its claims. [00:02:01] Speaker 01: The department has not conducted any investigation into automatic deletion or describe the relevant circumstances of how it works. [00:02:08] Speaker 03: Why don't you just resend them rather than bring a lawsuit? [00:02:13] Speaker 01: Um, yes, your honor. [00:02:13] Speaker 03: So, um, first there's no statute of limitations problem here. [00:02:20] Speaker 03: One for correct. [00:02:23] Speaker 01: I mean, from our client's perspective, he sent the request the way he was supposed to. [00:02:27] Speaker 01: There has not been an adequate explanation as to what happened to the request. [00:02:32] Speaker 01: The government hasn't addressed a very likely scenario of what happened. [00:02:36] Speaker 01: He filed suit, he paid his filing fee. [00:02:39] Speaker 01: He put the effort into filing a lawsuit and to start over again at the back of the line, it would be a rather tough pill for a requester to swallow in these circumstances. [00:02:50] Speaker 01: You know, I won't get into any settlement discussions we had with the government. [00:02:54] Speaker 01: I can tell you it certainly would be amenable to try to work something out that doesn't put him back to the back of the line. [00:03:01] Speaker 01: But I think the same question could be asked of the government. [00:03:04] Speaker 01: You are aware of these requests now for several years after the suit was filed. [00:03:08] Speaker 01: Why not just process the request then? [00:03:11] Speaker 02: If he had just filed 21 days after he originally filed, he'd only be 21 days behind the line. [00:03:20] Speaker 01: Um, if he had, yeah, if he had started over at that point, yes, he would, that'd be the amount of time that passed in between. [00:03:28] Speaker 02: I mean, I could have, he could have presumably like called, I think it said, you know, I filed this 20 days ago. [00:03:35] Speaker 02: I haven't heard back. [00:03:37] Speaker 02: I'm refiling today. [00:03:38] Speaker 02: Um, you know, can you see if there's some technical glitch on your end? [00:03:43] Speaker 02: This seems kind of like what a, a normal person would do. [00:03:47] Speaker 01: Uh, [00:03:48] Speaker 01: I don't know whether these components make a phone number available to contact anyone. [00:03:54] Speaker 01: I know many components don't. [00:03:55] Speaker 01: But, you know, unfortunately, the reality is that it's not at all uncommon for FOIA requests to be ignored, for follow-ups to be ignored. [00:04:04] Speaker 01: You know, if we were in a situation in which agencies routinely responded to requests in a timely manner, then it might be a different situation. [00:04:13] Speaker 01: Then a requester might think, gee, something must be wrong here. [00:04:16] Speaker 01: because they normally respond to requests, but that is just simply not the reality of how most government agencies operate their FOIA programs. [00:04:24] Speaker 01: They frequently violate the deadlines. [00:04:27] Speaker 01: And so it's not at all unusual. [00:04:30] Speaker 03: Is there evidence? [00:04:31] Speaker 03: You're making factual assertions. [00:04:34] Speaker 03: Where's your evidence? [00:04:38] Speaker 01: In terms of government FOIA practices, there's [00:04:41] Speaker 01: Right. [00:04:42] Speaker 01: Yeah, that's not an issue that was litigated below. [00:04:45] Speaker 01: That's not something that is in the record. [00:04:48] Speaker 01: You know, I took this to be sort of, you know, kind of pragmatic questions about, isn't there another way that this could have been addressed? [00:04:57] Speaker 01: And I'm endeavoring to respond to those questions. [00:05:00] Speaker 01: But ultimately, if they were received, [00:05:03] Speaker 01: None of that matters under the statute. [00:05:06] Speaker 01: If they're received and they weren't responded to by the deadline, a requester has a claim that can be brought at that time. [00:05:13] Speaker 01: There's no obligation to go through any further process if a request hasn't been. [00:05:19] Speaker 02: I understand that. [00:05:20] Speaker 02: But you said if they were received. [00:05:22] Speaker 02: And that's the problem. [00:05:24] Speaker 02: It's really, really hard to know if they were received. [00:05:30] Speaker 02: there's nothing to suggest that they weren't received. [00:05:36] Speaker 02: And I mean, just off the top of my head, I can just think of half dozen, maybe a dozen things that after the original 20 days went by without a response that your client could have done. [00:05:50] Speaker 02: I mean, everything from, I think you sent them from a somewhat unusual email app. [00:05:56] Speaker 02: You could have tried sending them from a normal email app. [00:06:00] Speaker 02: He could have everything from as simple as that to something as, you know, taking the subway over to Pentagon and going into the lobby and asking to talk to somebody who, you know, deals with FOIA. [00:06:18] Speaker 02: It's public building. [00:06:18] Speaker 02: I'm not saying they just let everybody in without, you know, a reason and a security, but, you know, maybe somebody would have come down to meet him. [00:06:25] Speaker 02: All that seems so much easier than filing a federal lawsuit. [00:06:29] Speaker 01: Yeah, I certainly appreciate that. [00:06:31] Speaker 01: I don't know what luck Mr. Eddington would have if he just showed up at the government office and asked to talk to a FOIA officer. [00:06:40] Speaker 02: What about my idea of just sending it by Gmail? [00:06:44] Speaker 01: I don't know that we would be in any different position here. [00:06:48] Speaker 01: I mean, just to frame where we are, [00:06:52] Speaker 01: It's a summary judgment motion filed by the government. [00:06:54] Speaker 01: Are there explanations for what happened that would mean it wasn't received? [00:06:59] Speaker 01: Sure. [00:07:00] Speaker 01: There's also explanations that the government very easily could have addressed its declaration. [00:07:04] Speaker 01: I mean, that really is the only thing we've identified is a possible explanation that's consistent with all the evidence that was before the district court was that. [00:07:14] Speaker 02: I will ask the government how different the 14 different kind of. [00:07:20] Speaker 02: uh, units are in terms of servers and emails and systems and processes. [00:07:28] Speaker 02: But if there's some difference between each of the two, each of the 14 units, uh, you know, your theory is that 14 independent actors all messed up and their theory is that you messed up and [00:07:48] Speaker 02: Just, I mean, I'm anything but a expert on philosophy and Occam's razor comes to mind, but the simplest explanation there is not that 14 independent people had a computer problem, but that you did. [00:08:07] Speaker 01: So I think I can clarify that, your honor. [00:08:10] Speaker 01: So we're not saying that 14 independent people got the request into their inbox and chose not to respond to them. [00:08:16] Speaker 01: What we're saying is that the most likely explanation is that it's something with the way the government configured its email servers. [00:08:25] Speaker 01: They're all part of the same department. [00:08:26] Speaker 01: So it isn't 14 independent actors. [00:08:28] Speaker 01: It's one government email system. [00:08:30] Speaker 01: And so certainly if they have answers to questions about how that's configured, that will be helpful. [00:08:36] Speaker 01: But that's the kind of evidence that should have been presented in summary judgment. [00:08:40] Speaker 01: And at the end of the day, it's a summary judgment case. [00:08:42] Speaker 01: The inferences are supposed to be drawn [00:08:44] Speaker 01: in our favor. [00:08:45] Speaker 01: And the district court took the opposite approach in and put all the inferences in favor of the government in my rebuttal time. [00:08:53] Speaker 01: So I will have you to answer answer any additional questions or handle them in a bottle. [00:08:58] Speaker 01: All right, Miss Walker. [00:09:04] Speaker 00: Thank you, Your Honor. [00:09:05] Speaker 00: May it please the court. [00:09:06] Speaker 00: My name is Anna Walker and I represent the Department of Defense. [00:09:09] Speaker 00: Today we asked the court to affirm summary judgment because the appellant has not demonstrated that the Department of Defense received the FOIA requests that he claims he submitted to the Department of Defense. [00:09:20] Speaker 00: To answer the question that was raised just previously, I did check with the Department of Defense, each of the 14 components that the requests were sent to have different email servers. [00:09:33] Speaker 00: But we would submit that this argument actually is not right at this point for the court to consider. [00:09:38] Speaker 00: Had the appellant raised this argument during the summary judgment briefings in the detail that he is raising it now, we could have addressed this matter really simply with a supplemental declaration. [00:09:49] Speaker 00: that the disposes of the issue. [00:09:50] Speaker 00: Ms. [00:09:51] Speaker 02: Walker, did I just hear you right that the 14 units did have 14 different email servers? [00:09:58] Speaker 00: That is correct, Your Honor. [00:09:59] Speaker 02: So, I mean, that seems, I'm not saying we need this information to side with you, but to me, that's just, it makes the appellant's theory go from unlikely [00:10:18] Speaker 02: to exceptionally unlikely. [00:10:24] Speaker 00: And Your Honor, we would say that our evidence and the initial declaration was actually very strong that the appellant's argument was very highly unlikely because of the fact that each of the components checked its email folders, including its spam folders, [00:10:40] Speaker 00: and its FOIA logs where FOIA requests are automatically intake and recorded and did not have find any evidence of the request. [00:10:49] Speaker 00: In addition, the declaration explains that had the request come in, each of the components would have sent an acknowledgement [00:10:57] Speaker 00: in some form or another to the appellant. [00:10:59] Speaker 00: And appellant has made no demonstration that he received any of these acknowledgement letters. [00:11:04] Speaker 00: And we would submit that this evidence alone is sufficient to show that there's no evidence here of actual receipt. [00:11:15] Speaker 00: We would also point out to the fact that appellant's argument that asking the court to speculate about the possibility that his [00:11:26] Speaker 00: FOIA requests were automatically deleted from spam folders before they were checked is a bit of a red herring because it complains the issue of what is sufficient to establish that an agency conducted a reasonably calculated search for responses to a FOIA request. [00:11:45] Speaker 00: with appellant's threshold obligation to show that he submitted a FOIA request in the first place. [00:11:50] Speaker 00: In other words, the crux of this case is whether the appellant has actually submitted a FOIA request, and here the evidence is overwhelming to show that he did not. [00:12:00] Speaker 00: It is the requester's jurisprudential obligation [00:12:03] Speaker 00: to establish that he has exhausted his administrative remedies by submitting a FOIA request in the first instance. [00:12:10] Speaker 00: His evidence in this case simply does not meet this obligation, and so we would say that on this grounds alone, the court can decide to affirm the trial court's decision. [00:12:22] Speaker 00: Specifically, he points to only two pieces of evidence to support his claim that the department received his FOIA requests. [00:12:29] Speaker 00: However, neither of these pieces of evidence is probative of actual receipts. [00:12:33] Speaker 00: First, he points to the fact that he made PDF copies of emails that he allegedly sent to the Department of Defense's 14 different components. [00:12:45] Speaker 00: However, [00:12:47] Speaker 00: These email messages do not indicate that they were actually received by each of the 14 different components. [00:12:53] Speaker 00: In addition, he points to the fact that he received no bounce back or error messages after he submitted the emails to the Department of Defense. [00:13:03] Speaker 00: But we would submit that this evidence is just as probative of receipt as it is to the fact that he'd never submitted the [00:13:10] Speaker 00: the emails the correct way in the first place. [00:13:13] Speaker 00: And so while we would say that it would be very difficult in this case for him to show receipt, especially against the department's declaration that establishes that an agency that processes over 50,000 FOIA requests each year has no record of receiving his 14 FOIA requests. [00:13:32] Speaker 00: There are additional pieces of evidence that appellant could have cited to, to perhaps bolster his argument of receipt. [00:13:39] Speaker 00: One of those pieces of evidence could have been an email header that demonstrated that the emails that he sent to the Department of Defense were actually received by the Department of Defense's 14 different email servers. [00:13:53] Speaker 00: In fact, the Court of Federal Claims uses evidence exactly like this to demonstrate when a bid submitted by a contractor has actually successfully submitted his bid to the federal agency that he is sending the bid to. [00:14:08] Speaker 00: In addition, a parent could have cited to read receipts, which indicate that the email potentially was actually received by the intended recipient. [00:14:19] Speaker 00: And we know that other courts across the country, including the Sixth Circuit, has used this as circumstantial evidence to establish receipt. [00:14:27] Speaker 00: He has not pointed to either of these additional pieces of evidence. [00:14:30] Speaker 00: and he has also not pointed to the fact that his actual pieces of evidence are sufficient to establish receipt. [00:14:39] Speaker 00: And so for that reason, he has not upheld his burden to show that the department actually received the FOIA requests. [00:14:49] Speaker 00: I'm sorry, Your Honor, I can't hear you. [00:14:52] Speaker 02: All right. [00:14:53] Speaker 02: I'm sorry. [00:14:56] Speaker 02: It's not your burden to, [00:14:58] Speaker 02: have a theory for what what happened here but do you have a theory for how i mean i i believe mr eddington thought he sent these he pressed a button on an email app and after he pressed that button it was his belief that the email was sent and likely received do you have a theory for why they weren't received [00:15:22] Speaker 00: Me personally, I don't have a very strong theory except for the fact that they were never actually received. [00:15:28] Speaker 00: I do believe he intended to send them, but I echo the court statement earlier about the airmail app not being one that perhaps is typically used when submitting requests, or at least not, I'm sorry, not an email client that a lot of people use. [00:15:48] Speaker 00: email clients can sometimes malfunction. [00:15:51] Speaker 00: And so that would be one possibility. [00:15:54] Speaker 03: What was the department? [00:15:57] Speaker 03: No, please go ahead. [00:15:59] Speaker 03: Okay, thanks. [00:15:59] Speaker 03: But the Defense Department has now received these requests, haven't they? [00:16:05] Speaker 03: Through you? [00:16:08] Speaker 00: Yes, Your Honor, they were attached to the complaint. [00:16:12] Speaker 03: Why don't we just wait 21 days and you respond? [00:16:16] Speaker 03: Or not you, but the various [00:16:19] Speaker 03: compartments or departments. [00:16:22] Speaker 03: What's all the fuss about? [00:16:24] Speaker 00: Your honor, the biggest problem with responding to the FOIA requests at this time is that it would be unfair to the requesters that have submitted their requests that were actually received by the Department of Defense, because the Department of Defense processes their FOIA requests on a first in first out basis, which was. [00:16:40] Speaker 03: Wait a minute. [00:16:43] Speaker 03: These requests are now have been quote actually received. [00:16:51] Speaker 00: Um, if that's, um, I misspoke that if that is what I intended to say they have not been received through the proper channels. [00:17:00] Speaker 00: They have been attached to the complaints we have them we're aware of them, but they have not been submitted through the proper channels of actual submitting a request to the Department of Defense. [00:17:13] Speaker 00: it upholds the order of administrative processing to do so in this case. [00:17:18] Speaker 00: And we would also submit that not only does it create an unfair advantage to start processing this request that hasn't been received the way other requesters have submitted requests to the department, but it also creates a dangerous precedent where the department could now suddenly be liable for employer requests that it never received in the first place. [00:17:38] Speaker 00: And it also creates a situation [00:17:42] Speaker 00: that might lead to chaos down the road where the department is now looking at requests that it received or is alleged to have received by a requester and trying to determine exactly when it received it. [00:17:56] Speaker 00: And these are reasons why the court in Houston and effects versus Michigan have declined to use any presumption of receipts from a date earlier than actually receiving the request through the proper channels. [00:18:13] Speaker 00: And so we again submit that [00:18:20] Speaker 00: The, the evidence here is simply not sufficient to show that pellet has met his burden to establish a genuine dispute of material fact that the agency received the FOIA request. [00:18:31] Speaker 00: And so for this reason, the court can affirm summary judgment [00:18:35] Speaker 00: by the district court. [00:18:38] Speaker 00: We also submit that, again, separately, the court could also affirm judgment by the lower court simply by the fact that appellant has not established his jurisprudential obligation to show that he exhausted his administrative remedies by submitting a request in the first place. [00:18:57] Speaker 00: I see that I'm running short of time, so if there are no further questions, for all of these reasons, we ask that judgment be affirmed. [00:19:05] Speaker 04: right. [00:19:06] Speaker 04: Thank you, Mr Topic. [00:19:07] Speaker 04: I think you have a minute or so left. [00:19:11] Speaker 01: Thank you, Your Honor. [00:19:12] Speaker 01: As to Houston in the cases rejecting the prison mailbox rule in certain circumstances, the government is conflating the presumption of receipt with what date you use, whether you use the date of mailing or the date of receipt in statutes that use language like submitted or filed. [00:19:30] Speaker 01: Those are not cases [00:19:31] Speaker 01: that rejected a presumption of delivery, that was simply a question of which date do you use. [00:19:37] Speaker 01: It's not an issue and there are plenty of cases applying the mailbox rule to a presumption of receipt and also doing that when it comes to email. [00:19:46] Speaker 02: The last thing- Do you know why your client took, I think it was seven months to file suit and I mean, I asked in part because today you've emphasized that he's in a hurry. [00:20:00] Speaker 01: I don't have an answer to how that timing worked out. [00:20:06] Speaker 01: What I would close on, if I may, is this would be a different case if this had not been at summary judgment. [00:20:12] Speaker 01: And the district court's decision, if you go back to the way inferences are supposed to be resolved at summary judgment, we've come forward with more than speculation to rebut the government's evidence, and more should have been required before summary judgment was granted. [00:20:26] Speaker 03: What's the remedy you're seeking? [00:20:29] Speaker 01: Well, I think it should be remanded with instructions to vacate summary judgment. [00:20:33] Speaker 01: And then the district court has a number of options available on how to resolve the case. [00:20:37] Speaker 01: It could give the government an opportunity to submit a second set of affidavits that address the issues that we have raised. [00:20:45] Speaker 01: And if they were to do that, the case would be in a different question. [00:20:50] Speaker 03: Are you asking the district court to order the government to respond within 21 days or two weeks or what? [00:20:58] Speaker 01: We have not filed our own summary judgment motion asking for any relief. [00:21:02] Speaker 01: The government has asked that the case be dismissed based on it not being received. [00:21:08] Speaker 01: So what do you get if you win? [00:21:12] Speaker 01: I think what we would get if we win is that either the government would have to furnish more detailed affidavits [00:21:19] Speaker 01: to meet its burden, or the district court could allow limited discovery into those questions instead of affidavits. [00:21:25] Speaker 01: And then ultimately, we would want a finding that it was received through another set of briefing in a motion that we have not filed at this time. [00:21:39] Speaker 04: All right. [00:21:40] Speaker 04: If there are no more questions, thank you, counsel. [00:21:42] Speaker 04: And Madam Clerk, if you call the next case.