Charles ROBERT, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee, 26 F. App'x 87

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the decision of said district court be and it hereby is AFFIRMED. Plaintiff-Appellant, Charles Robert (“Robert”), appeals the judgment of the United States District Court for the Eastern District of New York (Jacob Mishler, Judge) entered March 30, 2001, granting the motion for

summary judgment of Defendant Appellee, United States Department of Justice (“DOJ”). The judgment was entered in accordance with a Memorandum and Order dated March 22, 2001. Robert brought a claim under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the DOJ relating to thirteen categories of documents, which he alleged the DOJ improperly withheld from him after he requested them. The district court granted

summary judgment in favor of the DOJ on various grounds for the different categories of documents. Robert appeals the district court’s ruling as to four of those categories: the “Charles Robert Criminal Investigation” documents, the “Noyer” documents, the “Bromwich” documents, and the “OPR Rogers” documents. We note that Robert has raised a First Amendment argument for the first time on appeal based on the Supreme Court’s recent decision in Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001), which was decided a few months after the district court’s decision in this case.

Robert asks us for a remand with instructions to the lower court to reconsider its reasoning in the light of Bartnicki. “‘[I]f subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.’ ” Sporty’s Farm L.L.C. v. Sportsman’s Market, Inc., 202 F.3d 489, 496 (2d. Cir.2000)(quoting United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801)).

We have considered Robert’s new argument, find Bartnicki to be inapposite to the circumstances of this case, and decline the invitation to remand. Having reviewed all of Robert’s other contentions, we affirm the judgment for substantially the same reasons as set forth in the district court’s Memorandum of Decision and Order. For the reasons set forth above, the judgment of the district court is AFFIRMED.