Perioperative Services And Logistics, LLC v. DVA

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued November 10, 2022 Decided January 17, 2023 No. 21-5223 PERIOPERATIVE SERVICES AND LOGISTICS, LLC, APPELLANT v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, APPELLEE Appeal from the United States District Court for the District of Columbia (No. 1:20-cv-00095) Edward J. Tolchin argued the cause and filed the briefs for appellant. Douglas C. Dreier, Assistant U.S. Attorney, argued the cause for appellee. On the brief were R. Craig Lawrence, Jane M. Lyons, and Michael A. Tilghman II, Assistant U.S. Attorneys. Before: KATSAS and PAN, Circuit Judges, and TATEL, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge TATEL. 2 TATEL, Senior Circuit Judge: This Freedom of Information Act case presents a recurring problem: what is a district court to do when the government claims that a withheld record is exempt from disclosure but the basis for that exemption cannot be gleaned from public affidavits or the withheld record itself? Our court has held that in such circumstances the government may file an ex parte declaration, which the court can read but the FOIA requester cannot, to explain the basis for the exemption. In this case, the district court accepted an ex parte declaration and concluded that the requested record was exempt. For the reasons set forth below, we affirm. I. Perioperative Services and Logistics, LLC, sells medical devices to the Department of Veterans Affairs (VA). After someone emailed the VA accusing Perioperative of selling counterfeit implants, the VA’s National Center for Patient Safety posted an internal recall, requiring agency facilities to sequester Perioperative products. Forty days later, after an investigation yielded no support for the accusation, the VA lifted the recall. Seeking to unmask the complainant, Perioperative filed a FOIA request for the complaint. The VA denied the request, relying on Exemption 6, which shields “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Perioperative filed suit in district court, and the VA moved for summary judgment. In support, it filed an ex parte declaration by VA employee Brian P. Tierney, who explained why the VA believes that producing the document would invade the complainant’s privacy. But, Tierney went on, the VA faced a catch-22: publicly filing the Tierney declaration would itself reveal information that would unmask the 3 complainant. The district court agreed, reviewed the Tierney declaration in camera, and granted summary judgment to the VA. Perioperative Services & Logistics, LLC v. Department of Veterans Affairs, No. 20-cv-00095 (ABJ), 2021 WL 4476769, at *1 (D.D.C. Sept. 30, 2021). On appeal, Perioperative offers a dozen arguments that boil down to just two: that the district court improperly relied on the Tierney declaration and that the VA failed to carry its burden to demonstrate that the complaint is exempt from disclosure under Exemption 6. II. In accepting the Tierney declaration, the district court relied on our court’s decision in Arieff v. Department of …

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