William A. White v. Federal Bureau of Investigation

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 19, 2021*
Decided March 24, 2021
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-1798
WILLIAM A. WHITE,
Plaintiff-Appellant,
v.
FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 18-cv-841-RJD
Reona J. Daly,
Magistrate Judge.
O R D E R
This interlocutory appeal involves a denial of William White’s request that the
district court order the Federal Bureau of Investigation to produce immediately tens of
thousands of unreviewed documents about white supremacy and white nationalism.
White had requested those documents under the Freedom of Information Act, and the
FBI agreed to review and produce them at a rate of 500 pages per month, in keeping
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-1798 Page 2
with its policy for large requests. The district court refused to order the Bureau to pick
up the pace of its production. White has appealed the denial of that injunction while his
other claims remain pending in the district court. We have jurisdiction over this appeal,
but because the district court did not err in refusing to compel faster production, we
affirm.
White, a federal inmate, seeks the FBI’s records of white supremacists, white
nationalists, and their affiliated groups to see if the agency is improperly investigating
them. He sent the FBI 57 requests under FOIA between 2017 and 2018, some of which
the Bureau denied and ten of which it approved for processing. Dissatisfied, White sued
the FBI, along with other agencies from which he sought similar records, alleging that
they improperly had withheld documents under FOIA, 5 U.S.C. § 552(a)(3)(A). He
sought an injunction ordering the agencies to turn over the documents immediately.
White and the FBI later cross-moved for partial summary judgment. The FBI argued
that it had properly denied most of White’s FOIA requests. And, for the ten requests
that it had approved—which involved about 55,000 pages of documents—the FBI
maintained that it was reasonably producing those documents. Adhering to the
agency’s production-rate policy, it was reviewing and turning them over at a rate of
500 pages per month. It explained that an analyst must review each document line by
line before release, and its release policy prevents one requester from consuming
inordinate resources to the detriment of other requesters. White responded that 500
pages per month was not “prompt” disclosure under FOIA—at that rate, he will have to
wait nine years to receive the requested documents—and so he was entitled to
injunctive relief commanding a faster turnover.
A magistrate judge, presiding with the parties’ consent, see 28 U.S.C. § 636(c)(1),
ruled for the FBI on the cross-motions for summary judgment. As relevant to this
appeal, she ruled that 500 pages per month was an adequate pace to produce the ten
requests that the FBI had approved. The judge reasoned that, given the FBI’s limited
resources and the absence of a public need for faster production, 500 pages per month
was sufficient. White filed a motion for reconsideration, which the judge denied. The
judge ordered that summary judgment be entered for the FBI “at the close of the case.”
Before turning to the merits of White’s interlocutory appeal, we consider our
jurisdiction. Normally, appellate courts have jurisdiction only over final judgments. 28
U.S.C. § 1291. But there is a statutory exception for “[i]nterlocutory orders … refusing
… injunctions.” 28 U.S.C. § 1292(a)(1). See also Chicago Joe’s Tea Room, LLC v. Vill. of
Broadview, 894 F.3d 807, 811–12 (7th Cir. 2018). This appeal falls within that exception:
White expressly invoked 5 U.S.C. § 552(a)(4)(B), which allows a district court “to enjoin

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No. 20-1798 Page 3
the agency from withholding agency records and to order the production of any agency
records improperly withheld from the complainant.” When the district court granted
partial judgment for the FBI, albeit postponing formal entry of that order until the case’s
“close,” it effectively denied the preliminary injunctive relief that White sought. See
Chicago Joe’s Tea Room, 894 F.3d at 812.
The FBI offers two reasons why, in its view, we do not have appellate
jurisdiction, but neither argument persuades us. First, it argues that under Carson v.
American Brands, Inc., 450 U.S. 79, 84–5 (1981), we cannot review a ruling that denies
injunctive relief unless the appealing party faces irreparable harm. But that approach
effectively makes a finding of jurisdiction dependent on the ultimate merits, since a
preliminary injunction cannot be entered unless the party can demonstrate irreparable
injury. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).
Moreover, the defendants overread Carson. There the district court refused to enter a
proposed consent decree in a certified class action, where the decree included injunctive
relief. In order to tease out what might be appealed, the Supreme Court paid heed to the
fact that the district court’s order bore the hallmarks of injunctive relief, including the
risk of irreparable harm to the petitioners.
In that context, the question arose whether the consent-decree order fell within
the scope of section 1292(a)(1). The Supreme Court concluded that the answer was yes:
“in refusing to approve the parties’ negotiated consent decree, the District Court denied
petitioners the opportunity to compromise their claim and to obtain the injunctive
benefits of the settlement agreement they negotiated.” Id. at 89. The order was thus “an
order ‘refusing’ an ‘injunctio[n]” and immediately appealable. See also Holmes v. Fisher,
854 F.2d 229, 231–32 (7th Cir. 1988). White’s case is even more straightforward. His
appeal concerns only a request for preliminary injunctive relief, not the approval of a
global consent decree, and his petition was denied. That is enough to secure our
jurisdiction over the interlocutory appeal. See 28 U.S.C. § 1292(a)(1); Chicago Joe’s Tea
Room, 894 F.3d at 812. The question of irreparable harm is important, no doubt, but it is
one for the merits.
The FBI also contends that appellate jurisdiction is absent because White can still
obtain his requested relief—faster production of the FBI’s records—if he simply
narrows his FOIA requests. True, we do not exercise jurisdiction over injunctive orders
when “substantial and similar relief is still available in the district court.” Albert v. Trans
Union Corp., 346 F.3d 734, 739 (7th Cir. 2003). But the relief that the FBI describes
depends on actions outside the district court, inasmuch as it requires that White to
change his request. And the FBI’s suggested change is not the relief that White seeks.

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No. 20-1798 Page 4
See id. at 739–40. White seeks an injunction mandating that the FBI disclose all the
documents he wants, right now; narrowing that request would not change the 500-
documents-per month rate of production and would require White to accept fewer
documents than he believes he is entitled to.
Though our jurisdiction is secure, White loses on the merits of his appeal,
because his ultimate likelihood of success is far too low. He challenges only the denial
of his request that the FBI release 55,000 pages of documents immediately. FOIA
requires that agencies produce non-exempt records “promptly,” 5 U.S.C. § 552(a)(3)(A),
and courts can order agencies to supply them if “improperly withheld.” Id.
§ 552(a)(4)(B); Rubman v. U.S. Citizenship & Immigr. Serv., 800 F.3d 381, 386 n.1 (7th Cir.
2015). But under § 552(a)(6)(D)(1), agencies may develop regulations “for multitrack
processing of requests for records based on the amount of work or time (or both)
involved in processing requests.” And the Department of Justice has done so, allowing
agencies such as the FBI to “designate additional processing tracks that distinguish
between simple and more complex requests based on the estimated amount of work or
time needed to process the request.” 28 C.F.R. § 16.5(b). The FBI’s policy for requests
exceeding 500 pages of documents is one of those contemplated tracks that allows for
measured production of large FOIA requests.
Furthermore, the district court permissibly ruled that the FBI’s application of its
policy did not warrant an injunction. The policy does not prohibit all requests for
immediate release of large amounts of documents. Rather, FOIA, 5 U.S.C. § 552(a)(6)(E),
and the DOJ’s regulations, 28 C.F.R. § 16.5(e), allow for expedited production if the
requester’s safety is in danger, the public’s need to know about governmental activity is
urgent, or widespread media interest raises questions about the government’s integrity.
Id. at 16.5(e). White does not attack this standard on its face, and the court reasonably
ruled that White did not meet it. Although he argued that the public has an interest in
his receiving the documents quickly, he did not specify, let alone substantiate, that
interest. Nor did he show any safety threat, public urgency, media interest, or concerns
of government integrity. Thus, the district court reasonably concluded that the FBI was
not improperly withholding documents by following its statutorily permissible policy
and producing documents at 500 pages per month.
We have considered White’s other arguments, and none has merit.
AFFIRMED

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