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Motion for Reconsideration

Court of Appeals Decisions

Marino v. DEA, No. 10-5354, 2012 WL 2866310 (D.C. Cir. July 13, 2012) (Griffith, J.). Holding: Reversing the district court's denial of plaintiff's Rule 60(b) motion, and remanding to the district court for further proceedings. The D.C. Circuit holds that plaintiff "has raised a meritorious defense, which entitles him to have the district court look again at his motion [for reconsideration], but not necessarily grant it." At the outset, the D.C. Circuit notes that "[a]lthough [it] review[s] a district court's denial of a Rule60(b) motion for abuse of discretion, . . . [it] must consider underlying legal issues de novo." In terms of determining whether plaintiff has presented a meritorious defense, the court notes that he "need only provide 'reason to believe that vacating the judgment will not be an empty exercise or a futile gesture.'" The D.C. Circuit finds that here plaintiff proffered evidence that publicly linked the subject of the request to a specific investigatory file, which brings into question the propriety of DEA's Glomar response. The D.C. Circuit determines that "[a]lthough these unauthenticated documents [submitted by plaintiff] cannot prove that the identity of the person to whom [a given] NADDIS No. . . . was assigned is already in the public domain, they at least establish a dispute over this material fact" and "[s]howing a meritorious defense under Rule 60(b) requires nothing more." Additionally, the D.C. Circuit notes that if certain records, which were referenced in the documents filed in the instant case, "exist as described and are part of a public court record, they would be enough for the requisite 'hint of a suggestion' that [plaintiff] could prove at trial the specific information he seeks has already been disclosed." The court comments that "[a]lthough [plaintiff] would presumably need to produce the actual documents at trial, at this juncture [the D.C. Circuit] requires much less."

The D.C. Circuit rejects DEA's argument that the documents produced by plaintiff would not present a meritorious defense because "its Glomar response would still be valid [in light of the fact that] a U.S. Attorney released [those] documents, not the DEA." To the contrary, the D.C. Circuit finds that "the cases the DEA cites in which [the court] has allowed Glomar responses to stand despite prior public disclosure implicated a concern not present here: forcing one agency to adopt another's official disclosure of information common to both." The D.C. Circuit determines that "a federal prosecutor's decision to release information at trial is enough to trigger the public domain exception where the FOIA request is directed to another component within the Department of Justice." Furthermore, the D.C. Circuit dismisses DEA's argument that plaintiff does not present an adequate defense because "public information showing the existence of an investigatory file in [the subject's] name does not vitiate [DEA's] right under FOIA exemption 7(C) to withhold the contents of that file." Rather, the D.C. Circuit concludes that "[e]ven if later in litigation the DEA showed legitimate grounds to withhold every document in [the specific] NADDIS file . . . , [plaintiff] has raised a meritorious defense that the DEA's justification for refusing even to confirm the file's existence has been undermined by prior public disclosure." Lastly, as to DEA's claim that "the case is moot because [plaintiff] has already received all the relief to which he is entitled," namely, confirmation of the file's existence, the D.C. Circuit finds that DEA "conflates the ultimate merits of [plaintiff's] FOIA claim, which is not before [the court], with the limited question that is: whether the DEA's Glomar response was appropriate." The court holds that "[i]f [plaintiff] were to prevail on the Glomar issue, the DEA would be required to confirm that responsive records exist, then either release them or establish that they are exempt from disclosure."

District Court Decisions

Zander v. DOJ, No. 10-2000, 2012 WL 5353516 (D.D.C. Oct. 31, 2012) (Bates, J.). Holding: Defendants' motion for reconsideration is granted in part to the extent it seeks an indicative ruling pursuant to FRCP 62.1(a)(3); Defendants' motion for reconsideration is held in abeyance because the court lacks authority to grant further relief unless the court of appeals remands the case. "'Relief under Rule 60(b)(1) motions is rare; such motions allow district courts to correct only limited types of substantive errors.'" After considering the new submissions from the parties, "the Court believes that this is a circumstance where reconsideration as to part of the earlier decision would be appropriate" and the "Court would amend, in part, its June 20, 2012 Memorandum Opinion and Order."

Callaway v. Dep't of Treasury, No. 04-1506, 2012 U.S. Dist. LEXIS 141034 (D.D.C. Sept. 30, 2012) (Roberts, J.). Holding: Denying plaintiff's motion for reconsideration and granting defendants' motion for summary judgment. The court denied plaintiff's motion for reconsideration regarding the redactions made to the audio tapes. The court notes that "the audio tapes released by the EOUSA to plaintiff had the same content as the audio tapes received by the EOUSA from Customs prior to trial." "The Court's authority is limited to directing the release of non-exempt agency records in existence at the time the EOUSA received plaintiff's FOIA request." The court concludes "[t]here is no dispute that these tapes have been redacted, yet nothing in the record of this case demonstrates that the original tapes still exist, or that the original tapes remain in the EOUSA's possession, or that the tapes are improperly withheld."

Milton v. DOJ, No. 08-242, 2012 WL 3105984 (D.D.C. July 31, 2012) (Roberts, J.). Holding: Denying plaintiff's motion for reconsideration brought under Federal Rule of Civil Procedure 59(e). The court denies plaintiff's motion for reconsideration brought under Rule 59(e), finding that he "cites no intervening change in controlling law, provides no new evidence, and demonstrates no clear error in the February 8th opinion's treatment of Yeager [v. DEA,]"a case that he raised in connection with an earlier briefing. The court notes that its earlier "opinion concluded that the decision did not support [plaintiff's] argument that an agency has a duty to install new technology to facilitate disclosure under FOIA, for example by installing technology to facilitate segregation of the nonexempt portions of the [prison telephone conversations that he seeks]." Moreover, the court finds that "to the extent that [plaintiff] suggests that the agency acted in bad faith in selecting a technology system for recording inmates' telephone calls, the February 8th opinion expressly concluded that [he] provided no evidence of bad faith to refute the agency's assertion that it lacked the technological capacity to segregate the requested material, . . . and [plaintiff's] motion for reconsideration provides no such evidence either."

Wingate v. DHS, No. 11-223, 2012 U.S. Dist. LEXIS 100227 (M.D. Fla. July 19, 2012) (Covington, J.). Holding: Denying plaintiffs' motion for reconsideration brought under Rule 59(e) requesting that the court reconsider its decision to dismiss the action for lack of subject matter jurisdiction. The court denies plaintiffs' motion brought under Rule 59(e) to reconsider its dismissal of the case on the basis that plaintiffs lacked standing to bring the suit where their "names do not appear on the FOIA requests and correspondence." The court finds that correspondence from a senator reporting the results of his inquiry to FEMA on plaintiffs' behalf, and a letter from FEMA to the senator referencing plaintiffs "do not warrant reconsideration." For one, the court determines that these "documents do not constitute 'new evidence' because Plaintiffs candidly admit that they had the documents on file prior to the entry of the Court's Order of dismissal." Furthermore, the court finds that "[e]ven if [it] were to consider this belatedly submitted evidence, such evidence would not change the outcome of this case." The court concludes that "[t]he correspondence from Senator Nelson concerning the [plaintiffs], dated six months after [their] attorney['s] . . . FOIA request to FEMA has no bearing on the issue of whether Plaintiffs' complaint establishes the Court's jurisdiction." The court holds that "'a person whose name does not appear on a request for records has not made a formal request for documents within the meaning of the statute.'" The court concludes that "because the FOIA requests at issue did not indicate that they were presented by or on behalf of the [plaintiffs], or otherwise mention [them] by name, the [plaintiffs] lack standing to bring the present action."

Lardner v. FBI, No. 03-874, 2012 WL 2870177 (D.D.C. July 13, 2012) (Lamberth, J.). Holding: Denying plaintiff's motion to alter or amend its judgment pursuant to Rule 59(e), and denying his request for discovery. The court denies plaintiff's motion to alter or amend its judgment. As an initial matter, the court notes that, although plaintiff brought his motion for reconsideration under Rules 52(b) and 59(b), it will consider the motion under Rule 59(e), which affords guidance on such motions, which are "reserved for 'extraordinary circumstances.'" With respect to plaintiff's argument that the FBI was required to provide copies of documents that were transferred to NARA, the court finds that his "argument fails because he is merely re-litigating a stale legal theory, which will not be entertained under a Rule 59(e) motion." As to plaintiff's argument that the FBI failed to search certain indices for responsive records, the court concludes that "mere speculation as to the existence of records not located as a result of the agency's search does not undermine the adequacy of the search." The court finds that "[t]he FBI adequately searched for responsive documents since an agency is only required to search in the places 'likely' to possess responsive records." The court also rejects plaintiff's argument that the FBI should have searched its "Confidential Source Indices" for records related to one of the subjects, finding that "[p]laintiff does not proffer any proof that such documents would exist in the [these] [i]ndices, other than asserting that the FBI, on 'an official form,' searches the Confidential Source Indices for responsive records." The court also determines that, despite plaintiff's claims to the contrary, he "cannot point to evidence that would constitute 'acknowledgement' on the part of the FBI" as to the subject's status as a confidential informant. With regard to plaintiff's contention that he should have been provided certain "photographic copies," the court finds that "the FBI provided photocopies of the records plaintiff requested, thus fulfilling [his] FOIA request" and states that "[i]f plaintiff wanted the negatives of the photographs, he should have specified that in his original FOIA request." To the extent that plaintiff alleges the existence of certain missing files, the court concludes that he "fail[s] to cite any new evidence that would support his contentions." Regarding the court's previous finding that plaintiff "failed to comply with the [agency's] applicable FOIA regulations and thus did not 'effectively initiate a FOIA request'" for records located in FBI field offices, the court holds that "[t]he law is clear on this issue: parties seeking FBI records must send FOIA requests to individual FBI field offices." The court concludes that "[s]ince plaintiff failed to submit individual FOIA requests to various field offices for responsive documents, as is required by law, he cannot challenge the adequacy of the FBI's search."

Hiken v. DOD, No. 06-2812, 2012 WL 1929820 (N.D. Cal. May24, 2012) (Ware,J.). Holding: Granting defendants' partial motion for reconsideration; allowing defendants to assert Exemption 1 with regard to information for which it had asserted Exemption 2 prior to Milner, and holding that those documents are properly classified under Exemption 1; and concluding that defendants properly asserted Exemption 6. The court grants defendants' motion for reconsideration with respect to its earlier order finding that "certain 'names and official email addresses and official telephone numbers' were not covered by . . . exemption [6] as they both 'fail to meet the similar files prong of Exemption 6 and fail to amount to an unwarranted invasion of personal privacy,'" which relied on "a 2005 decision of the District [Court in the] District of Columbia holding that names and telephone numbers are not protected by Exemption6." The court finds that subsequent decisions of district courts in the District of Columbia have found that such material can, in fact, qualify for protection under Exemption 6. Despite plaintiff's objections, the court finds that because the court relied entirely on the decision of the district court in the District of Columbia, changes in the law in that district are relevant for the purpose of reconsideration. Moreover, the court notes that "due to the fact that venue in FOIA cases is, by statute, established 'in the District of Columbia,' a significant proportion of FOIA cases arise in that District, which means that the decisions of [that district] with regard to FOIA are entitled to considerable deference." As to the merits of the withholdings, the court concludes that "Defendants may withhold the personally identifying information of the individuals at issue, including photographs of those individuals, insofar as: (1) these individuals 'have a clear privacy interest in avoiding the disclosure' of such personally identifying information; and (2) releasing such personally identifying information would 'serve[] no public interest,' because it 'would not reveal what the government is up to.'"

Rivera v. FBI, No. 11-2072, 2012 WL 1660654 (D. Ariz. May 11, 2012) (Broomfield,J.). Holding: Denying plaintiff's motion for reconsideration to reopen his FOIA case, and concluding that the court lacks jurisdiction to hear his claims where plaintiff does not reside in or allege that records are maintained in the District of Arizona.

Taitz v. Astrue, No. 11-402, 2011 U.S. Dist. LEXIS 119453 (D.D.C. Oct. 17,2011) (Lamberth,J.). Holding: Denying plaintiff's Rule 59(e) motion for reconsideration. At the outset, the court notes that "motions [for reconsideration brought under Federal Rule of Civil Procedure 59(e)] are 'disfavored' and are reserved for 'extraordinary circumstances'" where the moving "party must show that 'there has been an intervening change of controlling law, that new evidence is available, or that granting the motion is necessary to correct error or to prevent manifest injustice.'" The court rejects plaintiff's claim that President Obama's posting of his 2009 tax return constitutes "new evidence" that "undermines [his] privacy interest in Form SS-5 for the social security number at issue" in this case, given that the tax return was posted "well before plaintiff filed her complaint." The court also dismisses plaintiff's contention that "the Court erred in declining to consider as evidence her allegation that she used the Selective Service System's online registration verification service to confirm the President's use of" a given Social Security number. The court finds that "[e]ven if true, this evidence would not undermine the President's privacy interest in the Form SS-5, and does nothing to 'warrant a belief by a reasonable person that the alleged government impropriety,' namely the President's purportedly fraudulent use of the number, 'might have occurred.'" The court likewise finds that other documentation submitted by plaintiff does not support any evidence of wrongdoing. Additionally, the court rejects plaintiff's various claims alleging "clear error" and "manifest injustice," concluding that "[n]one of plaintiff's arguments provides this Court any doubt that reconsideration would be inappropriate."

Families for Freedom v. CBP, No. 10 Civ. 2785, 2011 U.S. Dist. LEXIS 113143 (S.D.N.Y. Sept. 30, 2011) (Scheindlin, J.). Holding: Withdrawing the court's previous order directing CBP to produce certain records that the court now deems unresponsive, but ordering CBP to produce certain responsive records, asserting any applicable exemptions, by a specific date. Under the provisions of the court's local rules, motions for reconsideration "are committed 'to the sound discretion of the district court.'" Despite plaintiffs' objections, the court finds that CBP's motion for reconsideration is proper in this instance, because "while defendants have had ample time to present the arguments they now make, it is less clear that they have had the opportunity to do so." Therefore, "in the interests of both correcting material error and preventing clear injustice, [the court finds] it is appropriate to consider defendants' arguments, even if they were never fully presented prior to the motion for reconsideration." Accordingly, the court concludes that it "will now consider the responsiveness of each set of disputed documents, based on [its] in camera review, as well as the arguments of counsel."

Elec. Priv. Info. Ctr. v. DHS, No. 09-2084, 2011 WL 4014308 (D.D.C. Sept. 12, 2011) (Urbina,J.). Holding: Denying plaintiff's motion for relief upon reconsideration brought under Federal Rules of Civil Procedure 54(b), 60(b)(1), and 60(b)(6); and granting, in part, and denying, in part, plaintiff's award for attorney's fees. The court denies plaintiff's Rule54(b), 60(b)(1), and 60(b)(6) motions for relief upon reconsideration of the court's earlier order granting summary judgment to DHS with respect to records withheld under Exemption 2 on the basis that the Supreme Court's decision in Milner v. Department of the Navy represents "an intervening change in the controlling law for its case." The court rejects plaintiff's claim that "Rule 54(b) is an appropriate vehicle for requesting such reconsideration because, in light of the pending motion for statutory attorney's fees, the court's Order should not be considered a 'final judgment,' but rather an interlocutory decision." The court notes that "[i]f a court has resolved the merits of a case through a final order and only a statutory request for attorney's fees remains, the merits of the case are no longer pending for appeal purposes and the judgment is considered final and immediately appealable." Here, "[b]ecause the court's January 12, 2011 Order constitutes a final judgment as opposed to an interlocutory order, the plaintiff's motion seeking relief upon reconsideration of that Order is not properly brought under Rule 54(b), which can only be used to seek reconsideration of interlocutory orders." As for plaintiff's Rule 60(b)(1) motion, the court finds that such a motion, when "brought due to a change in controlling law[,] is timely only if either the movant has already filed an appeal or if the movant files its motion for relief within the appeal period." In this case, "plaintiff, despite knowing that Milner had been granted certiorari by the Supreme Court, . . . did not file its motion for relief upon reconsideration until ten days after the appeal period closed." The court concludes that "allowing the plaintiff to artificially extend its appeal time period in this fashion would embrace an interpretation of the reasonable time limits for a Rule 60(b)(1) motion that would undermine the finality of the court's judgment and promote uncertainty." Lastly, the court "determines that the plaintiff[ ] may not seek relief upon reconsideration under Rule 60(b)(6)," noting that "the change in law presented by Milner is not considered an 'extraordinary circumstance' under [that] Rule."

Negley v. FBI, No. 03-2126, 2011 WL 3836461 (D.D.C. Aug. 31, 2011) (Kessler,J.). Holding: Denying plaintiff's motion asking the court to reconsider its denial of his motion for contempt. The court denies plaintiff's motion requesting that the court reconsider its denial of his motion for contempt. Plaintiff argues that the court mischaracterized the geographic scope of his FOIA request and asks that it reconsider the reasonableness of the date used by defendant as the cut-off date for production for responsive records. In both instances, the court finds that plaintiff failed to present new evidence, law or arguments that would warrant altering the court's prior analysis.

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