FILED

NOT FOR PUBLICATION OCT 02 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN MICHAEL KELLY, No. 11-17684

Plaintiff - Appellant, D.C. No. 3:10-cv-04507-JSW

v.

MEMORANDUM*

U.S. CENSUS BUREAU; U.S.

DEPARTMENT OF COMMERCE,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Submitted April 29, 2013**

Before: HUG, FARRIS, and LEAVY, Circuit Judges.

John Michael Kelly appeals pro se from the district court’s grant of

summary judgment in favor of the United States Census Bureau and the United

States Department of Commerce (collectively “Census”) in Kelly’s action alleging

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). violations of the Freedom of Information Act (“FOIA”) and the Privacy Act. We

have jurisdiction under 28 U.S.C. § 1291. We affirm in part, vacate in part, and

remand.

We vacate and remand to the district court because it failed to enter

sufficiently detailed findings of fact and conclusions of law. See Wiener v. FBI,

943 F.2d 972, 987-88 (9th Cir. 1991); Van Bourg, Allen, Weinberg & Roger v.

NLRB, 656 F.2d 1357, 1357-58 (9th Cir. 1981). On remand, the district court must

provide an explanation, for each individual request, as to why it concludes that

Census conducted an adequate search reasonably calculated to uncover all relevant

documents responsive to the request. As part of its analysis, the district court must

address threshold issues, including, inter alia, the following: 1) whether Census

improperly interpreted the March 24, 2010 request to apply only to applicants and

not hirees, and the legal significance of any such interpretation; 2) whether Census

improperly interpreted the May 5, 2010 and June 22, 2010 letters to require Census

to search for only thirteen itemized records under FOIA; and 3) whether the

August 27, 2010 letter was a new request that required Census to conduct a new

search and produce documents. The district court also must address Kelly’s

contention that Census impermissibly failed to allow him to inspect and review the

records in his personnel file.

2 11-17684 We decline to affirm summary judgment on the alternative grounds of

failure to exhaust because there is evidence in the record to support Kelly’s claim

of exhaustion. See 5 U.S.C. § 552(a)(6)(C) (person is deemed to exhaust

administrative remedies if the agency fails to respond to a request under applicable

time limits); 5 U.S.C. § 552(a)(6)(A)(i) (requiring agency to determine within 20

days whether to comply with a request and to give notice of the right of

administrative appeal in its response to a request).

The district court did not abuse its discretion in denying Kelly’s motion for

recusal under 28 U.S.C. § 455(a) because Kelly failed to establish that the court

harbored any predisposition so extreme as to display clear inability to render fair

judgment. See Liteky v. United States, 510 U.S. 540, 551, 555-56 (1994);

Jorgensen v. Cassiday, 320 F.3d 906, 911 (9th Cir. 2003) (setting forth standard of

review).

Kelly’s motion to reassign the case to a different district court judge on

remand, set forth in his opening brief, is denied.

The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

3 11-17684