Christopher S. Oguaju v. United States of America

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided August 17, 2004
No. 00-5454
C HRISTOPHER S. OGUAJU,
APPELLANT
v.
UNITED STATES OF AMERICA,
APPELLEE
On Remand from the United States Supreme Court
Steven H. Goldblatt, appointed by the court, filed the
motion to govern further proceedings for appellant. With
him on the motion was Cary Berkeley Kaye.
W. Mark Nebeker, Assistant United States Attorney, filed
the opposition for appellee. With him on the opposition were
Kenneth L. Wainstein, United States Attorney, and R. Craig
Lawrence, Assistant United States Attorney.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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Before: G INSBURG, Chief Judge, and HENDERSON and TATEL,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The Supreme Court granted Ogua-
ju’s petition for a writ of certiorari to this court, vacated the
judgment in Oguaju v. United States, 288 F.3d 448 (D.C. Cir.
2002), and remanded the case for further consideration in
light of National Archives and Records Administration v.
Favish, 541 U.S. , 124 S.Ct. 1570 (2004). Because Oguaju
produced no evidence that ‘‘would warrant a belief by a
reasonable person’’ that the Department of Justice mishan-
dled his Brady request, id. at 1581, 1582, we reinstate our
judgment.
In Favish the Supreme Court held that, in order to out-
weigh a third party’s privacy interest protected by Exemption
7(C) to the Freedom of Information Act, 5 U.S.C.
§ 552(b)(7)(C), a requester ‘‘must produce evidence that
would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred.’’ 124
S.Ct. at 1581. ‘‘Only when the FOIA requester has produced
evidence sufficient to satisfy this standard will there exist a
counterweight on the FOIA scale for the court to balance
against the cognizable privacy interests in the requested
records.’’ Id. at 1582.
Upon remand Amicus argues that Oguaju’s assertion of
government misconduct satisfies the evidentiary standard
established in Favish. The Government responds that Ogua-
ju’s mere assertions are not evidence of government impro-
priety and, therefore, are not sufficient.
The Government clearly has the better of the argument.
In our prior opinion we held the records sought by Oguaju
were exempt from disclosure because Oguaju ‘‘never offered
any reason to believe the Department of Justice mishandled
his Brady request, and under circuit law a bald accusation to
that effect does not persuade.’’ 288 F.3d at 451. To restate
the point in terms used by the Supreme Court, Oguaju offers
only his ‘‘bare suspicion’’ of wrongdoing, Favish, 124 S.Ct. at

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1581, which is not sufficient to overcome ‘‘the presumption of
legitimacy accorded to the Government’s official conduct.’’
Id. (citing Dep’t of State v. Ray, 502 U.S. 164, 178–79 (1991));
see United States v. Armstrong, 517 U.S. 456, 464 (1996)
(‘‘[I]n the absence of clear evidence to the contrary, courts
presume that [government agents] have properly discharged
their official duties’’). As the Court explained, ‘‘[a]llegations
of Government misconduct are ‘easy to allege and hard to
disprove,’ Crawford-El v. Britton, 523 U.S. 574, 585 (1998), so
courts must insist on a meaningful evidentiary showing.’’
Favish, 124 S.Ct. at 1582.
Oguaju has failed to make the requisite showing. Although
Amicus now contends that Oguaju ‘‘can offer firsthand sworn
testimony’’ to support his allegations, the substance of his
proffer is that the government’s informant committed perjury
at Oguaju’s trial. An assertion of that sort, even in the form
of a sworn affidavit, is too insubstantial to warrant reopening
the record in this case. Such an accusation does not ‘‘warrant
a belief by a reasonable person that alleged Government
impropriety might have occurred.’’ Id. at 1581. The judg-
ment of this court is therefore reinstated.
So Ordered.

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