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Shapiro v. U.S. Department of Justice

United States District Court, District of Columbia

May 25, 2016

RYAN NOAH SHAPIRO; JEFFREY STEIN; NATIONAL SECURITY COUNSELORS; TRUTHOUT, Plaintiffs,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS United States District Judge

         This is an action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to obtain records created by the Federal Bureau of Investigation (“FBI”) during the course of the FBI’s processing of other FOIA requests. In January 2016, the Court issued an opinion that required the FBI to produce certain records, permitted the FBI to withhold other records, and solicited supplemental briefing and declarations with respect to yet other records. See Shapiro v. U.S. Dep’t of Justice (Shapiro I), No. 13-555, 2016 WL 287051 (D.D.C. Jan. 22, 2016). In April 2016, after seeking the parties’ positions on the remaining issues in the case, the Court issued a second opinion, permitting the FBI to assert certain FOIA exemptions for the first time with respect to the records it had ordered produced but denying the FBI permission to assert other exemptions, and directing the FBI to produce the records not affected by the remaining issues in the case. See Shapiro v. U.S. Dep’t of Justice (Shapiro II), No. 13-555, 2016 WL 1408080 (D.D.C. Apr. 8, 2016). The FBI has moved for reconsideration of Shapiro II, Dkt. 55, and has moved for a partial stay of its production obligations pending final judgment, Dkt. 60.

         For the reasons that follow, the Court GRANTS in part and DENIES in part the FBI’s motion for reconsideration, and GRANTS in part and DENIES in part the FBI’s motion for a partial stay.

         I. BACKGROUND

         The facts and procedural history of this complex FOIA suit are set out in the Court’s past opinions, see Shapiro I, 2016 WL 287051, at *1-8; Shapiro II, 2016 WL 1408080, at *1-4, and the Court will recount them only briefly here.

         The plaintiffs are journalists, advocates, and nonprofit organizations who seek the records that the FBI creates during the course of processing FOIA requests. Between 2010 and 2012, the plaintiffs filed FOIA requests with the FBI to obtain such records, to which the FBI responded in a variety of different ways. First, citing two categorical policies then in force, the FBI denied all of the plaintiffs’ requests for certain kinds of records (called “search slips, ” “processing notes, ” and “case evaluation forms”) as categorically exempt under FOIA. Second, the FBI denied some of the plaintiffs’ requests for records on additional targeted grounds. It withheld records from plaintiff Truthout on the ground that the deliberative-process privilege protected processing notes responsive to its request. Shapiro I, 2016 WL 287051, at *7. The FBI withheld records from plaintiffs NSC and Stein on the ground that the records responsive to their requests implicated the privacy interests of third parties. Id. at *20. And it withheld parts of records from Stein on the ground that various exemptions-Exemptions 5, 6, 7(C), 7(D), and 7(E)-protected those portions of the relevant records. Id. at *22.

         In Shapiro I, the Court considered both the FBI’s categorical policies concerning search slips, processing notes, and case evaluation forms and the more targeted assertions that the FBI had made in response to particular plaintiffs. The Court concluded first that both of the policies relied on by the FBI to categorically deny records to the plaintiffs were inconsistent with FOIA. Id. at *9-18. With respect to the targeted assertions, the Court concluded that the FBI had acted consistent with FOIA in withholding some of the records it had withheld and sought additional information with respect to the FBI’s other withholdings. Id. at *18-28. In particular, the Court sought additional briefing and evidentiary submissions with respect to (1) the FBI’s assertion of the Exemption 5 attorney work-product privilege in response to Stein’s second FOIA request, id. at *24-26, and (2) the FBI’s assertion of the Exemption 5 deliberative-process privilege in response to Truthout’s FOIA request, id. at *27-28. The Court asked the FBI to provide, with respect to this latter issue, “factual material that would explain why the . . . processing notes compiled in processing Turthout’s request are any more ‘predecisional’ or ‘deliberative’”-and thus shielded by the deliberative-process privilege-“than any other . . . processing notes.” Id. at *28.

         The Court did not enter an order directing the FBI to produce the withheld records at the time it issued its opinion in Shapiro I. Instead, at a status conference held on February 26, 2016, the Court asked the parties for their positions on the timeline for briefing the remaining issues in the case. The parties filed a joint status report on March 11, 2016, in which they set out radically different views of the issues remaining in the case. The FBI explained that it had “discontinued” one of the two policies the Court declared unlawful in Shapiro I-indeed, that it had terminated the policy some eight months before the Court’s decision, in May 2015. Dkt. 51 at 2; Dkt. 51-1 at 3 (Fourth Hardy Decl. ¶ 6). The FBI stated its intention of “submit[ting] further briefing on [its] modified policy” for the Court’s review. Dkt. 51 at 3. The FBI also explained that it had “anticipated that information contained in all processing records” (including those records that it had previously withheld only on the basis of its defunct policy) “would also be protected under FOIA Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(F) and reserved those exemptions in the event its categorical treatment was not affirmed, ” pointing to a footnote in a declaration attached to its original motion for summary judgment that purportedly presented these arguments. Dkt. 51 at 2 (citing Dkt. 21-3 at 25 n.20 (Hardy Decl. ¶ 75 n.20)) (emphasis added). The FBI also stated its intention to withhold additional information in these records pursuant to these newly identified FOIA exemptions. Dkt. 51 at 2.

         On April 8, 2016, the Court issued its opinion in Shapiro II. Relying on the D.C. Circuit’s opinions in Maydak v. U.S. Department of Justice, 218 F.3d 760 (D.C. Cir. 2000), and August v. FBI, 328 F.3d 697 (D.C. Cir. 2003), it concluded that the FBI had waived (a) its right to assert its new search-slip policy and (b) its ability to assert additional targeted exemptions by failing to raise those issues before the Court issued its opinion in the case and failing to provide sufficient justification for its belated assertions. See Shapiro II, 2016 WL 1408080, at *1-4. Consistent with Maydak and August, however, it nonetheless permitted the FBI to assert any exemptions that, if not entertained, might “compromis[e] national security or sensitive, personal, private information.” Maydak, 218 F.3d at 767. The Court also directed the FBI to produce any non-exempt records to the plaintiffs on or before May 10, 2016. Shapiro II, 2016 WL 1408080, at *5.

         The FBI has moved for reconsideration of the Court’s decision in Shapiro II, arguing that the cases on which the Court relied-specifically, Maydak and August-do not apply where the agency makes an untimely exemption claim in the district court (rather than the court of appeals). Dkt. 55. The FBI has also moved for a partial stay of its production obligations, arguing that the Court should stay any production not implicated by the ongoing briefing (specifically, the “case evaluation forms” the Court ordered produced in Shapiro I) until the Court enters final judgment in the case. Dkt. 60. The plaintiffs oppose both motions. See Dkts. 61, 62. The Court held oral argument on these motions on May 19, 2016.

         II. LEGAL STANDARD

         Because the Court has not entered final judgment, the FBI’s motion for reconsideration is governed by Federal Rule of Civil Procedure 54(b), which permits the Court to revisit any order that adjudicates “fewer than all the claims or rights and liabilities of fewer than all the parties . . . at any time before” the entry of final judgment. Fed.R.Civ.P. 54(b). Rule 54(b) is a “flexible” rule that “reflect[s] the ‘inherent power of the rendering district court to afford such relief from interlocutory judgments as justice requires.’” Cobell v. Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015) (quoting Greene v. Union Mut. Life Ins. Co. of Am., 764 F.2d 19, 22 (1st Cir. 1985)). But a court will ordinarily grant a motion for reconsideration under Rule 54(b) only when the movant demonstrates that there has been “(1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order.” Stewart v. Panetta, 826 F.Supp.2d 176, 177 (D.D.C. 2011).

         III. DISCUSSION

         A. Motion for Reconsideration

         1. Maydak, August, and Forfeiture

         The FBI’s primary argument in support of its motion for reconsideration is that the Court erred in applying the waiver rule announced in Maydak and August to its belated assertions of the targeted FOIA exemptions on which it now seeks to rely. In the FBI’s view, Maydak and August apply only where the government seeks to assert new FOIA exemptions “on appeal or on remand following appeal, ” see Dkt. 55-1 at 4 (quoting Wash. Post Co. v. HHS, 795 F.2d 205, 208 (D.C. Cir. 1986)), and, by contrast, where the government seeks to assert new FOIA exemptions in the district court, the waiver principles applied in Maydak and August generally do not apply. In essence, the FBI argues, it should be free to assert additional claims seriatim in the district court, as long as it does not act in bad faith and does not assert new exemptions after the district court has entered final judgment. The ...


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