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In Defense of Animals v. National Institutes of Health

December 12, 2007


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


This Freedom of Information Act ("FOIA") case was brought against the National Institutes of Health and U.S. Department of Health and Human Services (collectively, "NIH") by In Defense of Animals ("IDA") seeking information related to approximately 260 chimpanzees located as the Alamogordo Primate Facility ("APF") in New Mexico. On March 31, 2007, the Court issued an Order granting in part and denying in part the Parties' Cross-Motions for Summary Judgment that, inter alia, required NIH to search APF for clinical chimpanzee files and to release certain other previously-withheld documents. See [22] Order dated March 31, 2007 at 1-2. NIH filed the instant Motion for Partial Reconsideration of that Order on April 18, 2007. After reviewing both Parties' submissions and the attachments thereto, applicable statutory authority, relevant case law and the entire record as a whole, the Court shall DENY Defendant's Motion for Partial Reconsideration for the reasons that follow.


The Court presumes knowledge of the facts of this case, which are described more comprehensively in the Court's [23] Memorandum Opinion dated April 2, 2007. By letter dated January 20, 2004, IDA submitted a FOIA request to NIH's component, the National Center for Research Resources ("NCRR"), for documents relating to chimpanzees located at APF. See Compl. Ex. 1 (FOIA Request). APF is a government-owned and contractor-operated facility in New Mexico. Id. The chimpanzees located at APF are owned by NIH and are maintained under a contract with Charles River Laboratories, Inc. ("CRL"), a publicly held animal research company. Id. By letter dated March 5, 2004, NIH agreed to send IDA "all material consistent with the exemptions recognized by the FOIA," and explained that its disclosures would follow HHS's policy of "expung[ing] confidential commercial or financial information, evaluative material, EIN numbers, and personal information such as social security numbers, individual salaries and names of and identifying information about staff who are not listed as key personnel on the contract." Id. Ex. 5 at 1 (NIH's Response to IDA's FOIA Request dated March 5, 2004). NIH released documents to IDA on a rolling basis beginning July 23, 2004, with subsequent disclosures made in November 2004 and January 2005. Id. Ex. 6 (NIH's Partial Response to IDA's FOIA Request dated July 23, 2004); Defs.' Mot. for Part. Summ. J. Ex. A (NIH's Letters dated Nov. 5, 2004; Nov. 29, 2004; and Jan. 11, 2005). IDA filed a Complaint with this Court on September 10, 2004, seeking documents that NIH withheld from disclosure.

The Court granted in part and denied in part the Parties' Cross-Motions for Summary Judgment on March 31, 2007. The Court's Order required NIH, in relevant part, to (1) search the APF facility for requested documents, (2) release documents related to answers submitted to NIH by CRL as part of its contract proposal to manage the APF chimpanzee facility, and (3) release redacted information providing the square footage of APF, daily inventories of animals, floor plans and wiring diagrams, specific locations of individual animals, locations of animal records and specimens, numbers of rooms containing equipment, the numbers of animals in specific holding areas, and the square footage of specific areas. See [22] Order dated March 31, 2007 at 2 (hereinafter, the "Order"). NIH sought reconsideration of each of these areas in the instant Motion filed on April 18, 2007 (hereinafter, "Defs.' Mot. for Part. Recons."). IDA filed an Opposition on May 7, 2007, and NIH filed a Reply on May 17, 2007.


Fed. R. Civ. P. 54(b) is the appropriate basis under which a party can bring a motion to reconsider dismissed claims when fewer than all claims in an action have been dismissed. Pursuant to Rule 54(b),

any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Accordingly, without express direction for the entry of judgment on particular claims under Rule 54(b), court action which terminates fewer than all claims in a case is considered an interlocutory rather than a final decision and subject to revision at any time. See also Hill v. Henderson, 195 F.3d 671, 672 (D.C. Cir. 1999) (holding that a district court order dismissing one of several claims without making an explicit determination under Rule 54(b) is not a final decision subject to appellate review); Lewis v. United States, 290 F. Supp. 2d 1, 3 (D.D.C. 2003) (stating that a motion to reconsider dismissal of claims related to one of two parties was properly brought under Rule 54(b) rather than Rule 60). Although the Parties disagree as to the proper standard of review in the instant case, the Court's Order was not a final judgment. The Court required NIH to search for, and subsequently release, documents at a later date. The Parties were instructed to file a Joint Status Report with the Court concerning these additional documents. Because these outstanding issues required resolution prior to entry of a final judgment, Fed. R. Civ. P. 54(b) provides the proper standard of review for NIH's Motion.

The Court has broad discretion to hear a motion for reconsideration brought under Rule 54(b): "Unlike Rule 60(b) which contains a reasonableness provision, Rule 54(b) allows a court to reconsider its interlocutory decisions 'at any time' prior to a final judgment." Lewis, 290 F. Supp. 2d at 3 (quoting Rule 54(b)). The standard for determining whether or not to grant a motion to reconsider brought under Rule 54(b) is the "as justice requires" standard espoused in Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005), which requires "determining, within the Court's discretion, whether reconsideration is necessary under the relevant circumstances." Id. See also Singh v. George Washington University, 383 F. Supp. 2d 99, 101 (D.D.C. 2005). Considerations a court may take into account under the "as justice requires" standard include whether the court "patently" misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or whether a controlling or significant change in the law has occurred. See Singh, 383 F. Supp. 2dat 101. Furthermore, the party moving to reconsider carries the burden of proving that some harm would accompany a denial of the motion to reconsider: "In order for justice to require reconsideration, logically, it must be the case that, some sort of 'injustice' will result if reconsideration is refused. That is, the movant must demonstrate that some harm, legal or at least tangible, would flow from a denial of reconsideration." Cobell, 355 F. Supp. 2d at 540.

Cobell also suggests that even if justice does not "require" reconsideration of an interlocutory ruling, a decision to reconsider is nonetheless within the court's discretion: "[E]ven if the appropriate legal standard does not indicate that reconsideration is warranted, the Court may nevertheless elect to grant a motion for reconsideration if there are other good reasons for doing so." Id. at 540. However, the efficient administration of justice requires that a court at the very least have good reason to reconsider an issue which has already been litigated by the parties: "'The district court's discretion to reconsider a non-final ruling is, however, limited by the law of the case doctrine and "subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again."' Singh, 383 F. Supp. 2d at 101 (quoting In re Ski Train Fire in Kaprun, Austria, on November 11, 2004, 224 F.R.D. 543, 546 (S.D.N.Y. 2004)). Thus, if the court chooses to reconsider a motion even if justice does not so require, there must be a "good reason" underlying the parties' re-addressing an already decided issue.


A. Documents Located at the APF Facility

The Freedom of Information Act requires federal agencies, in responding to a request for information, to: (1) conduct an adequate search for that information through reasonable efforts; (2) provide the information to the requester, unless it falls within a FOIA Exemption; and (3) provide to a requester any information that can reasonably be segregated from the exempt information. 5 U.S.C. ยงยง 552(a)(3), 552(b). Although NIH acknowledges that APF houses records requested by IDA, see Defs.' Mot. for Part. Recons. at 8 ("[t]he clinical chimpanzee records are located at APF"), NIH argues that such ...

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