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Energy Future Coalition v. Office of Management and Budget

United States District Court, District of Columbia

August 19, 2016

ENERGY FUTURE COALITION, et al., Plaintiffs
v.
OFFICE OF MANAGEMENT AND BUDGET, et al., Defendants.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY United States District Judge

         Presently before the Court is Plaintiffs’ [32] Motion for Reconsideration of the Court’s Order issued on July 25, 2016, granting Defendants’ [23] Motion for an Open America Stay. See Mem. Opinion and Order (July 25, 2016), ECF Nos. [30], [31]. Upon consideration of the parties’ submissions, the relevant legal authorities, and the records as a whole-and for the reasons discussed in greater detail in the Court’s Memorandum Opinion issued on July 25, 2016, which the Court hereby incorporates in full-the Court shall DENY Plaintiffs’ [32] Motion for Reconsideration.

         I. LEGAL STANDARD

         To prevail on a motion for reconsideration, the movant bears the burden of identifying an “intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). However, “[m]otions for reconsideration are disfavored [.]” Wright v. F.B.I., 598 F.Supp.2d 76, 77 (D.D.C.2009) (internal quotation marks and citation omitted). “The granting of such a motion is . . . an unusual measure, occurring in extraordinary circumstances.” Kittner v. Gates, 783 F.Supp.2d 170, 172 (D.D.C.2011). Accordingly, motions for reconsideration may not be used to “relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Jung v. Assoc. of Am. Med. Colls., 226 F.R.D. 7, 8 (D.D.C.2005) (internal quotation marks and citation omitted).

         II. DISCUSSION

         Plaintiffs contend in their Motion for Reconsideration that the Court erred in granting the Open America stay requested by Defendant, arguing that (1) OMB failed to carry its burden of proof to establish that the agency exercised due diligence before the filing of the Complaint and (2) the Court’s Order “overlooks OMB’s own admission that its full-time FOIA workforce has doubled since OMB requested an Open America stay on the basis of its temporary personnel shortage in April.” Pls.’ Motion for Reconsideration, ECF No. [32], at 2, 4.

         1. OMB has met its burden of showing that it has exercised due diligence in responding to Plaintiffs’ request.

         Plaintiffs argue in their Motion for Reconsideration that OMB failed to show that it exercised due diligence in responding to Plaintiffs’ request, specifically in the time period prior to the filing of Plaintiffs’ Complaint. Plaintiffs have not raised a new argument, nor have they pointed to any new evidence. Instead, Plaintiffs have simply repackaged an argument that it raised-and the Court carefully considered-during the initial briefing of Defendants’ [23] Motion for an Open America Stay. See Pls.’ Opp’n to Motion for Open America Stay, ECF No. [24], at 3-5 (discussing events prior to the filing of the Complaint and arguing that “OMB therefore cannot meet its ‘burden of establishing that the agency is exercising due diligence in exceptional circumstances.’ ”).

         In the Memorandum Opinion issued on July 25, 2016, the Court specifically addressed, and rejected, “Plaintiffs’ argument that OMB had not exercised due diligence in responding to Plaintiffs’ request on the grounds that OMB’s paralegal failed to follow up after a phone conversation that took place on September 30, 2015.” Mem. Opinion (July 25, 2016), ECF No. [31], at 11 n.5. The Court found that “neither party followed up on that phone conversation prior to Plaintiffs’ filing of the Complaint on November 11, 2015, ” and that “any mistake by OMB was cured in light of the fact that soon after the filing of the Complaint, OMB’s counsel contacted Plaintiffs’ counsel, and the parties were able to reach an agreement that narrowed the scope of the request.” Id. (emphasis in original).

         To the extent that Plaintiffs are arguing in their Motion for Reconsideration that the Court’s prior findings were in “clear error” or would result in a “manifest injustice, ” the Court has reconsidered its findings and has concluded that the findings are supported by the factual record and are consistent with applicable legal authorities. Specifically, Plaintiffs contend that OMB failed to show that it has continuously exercised due diligence “since the request was received.” Pls.’ Mot. for Reconsideration, ECF No. [32]. However, prior to the filing of Plaintiffs’ Complaint, OMB attempted on several occasions to contact Plaintiffs’ counsel to discuss the narrowing of Plaintiffs’ FOIA request-the first time in August 2015, to no avail, and the second time on September 30, 2015, which resulted in the apparent phone conversation with Plaintiffs’ counsel. See Hardy Decl., ECF No. [23-1], at ¶¶ 12, 13; Gustafson Decl., ECF No. [24-1], at ¶¶ 2-8, Exhibit B. Furthermore, in response to Plaintiffs’ Motion for Reconsideration, OMB produced additional evidence indicating that in August 2015, OMB’s paralegal specialist “discussed the request with subject matters experts within OMB who were familiar with the topics of the FOIA request.” Hardy Second Decl., ECF No. [33-1], at ¶ 9. Specifically, OMB’s employees discussed the “scope of the request, suggestions for ways to narrow the request that could be offered to the requester for his consideration, and the anticipated volume of documents that may exist relating to the requester’s subject matter.” Id.

         Plaintiff would have the Court disregard the above evidence-which clearly describes OMB’s efforts to narrow Plaintiffs’ request-and instead find that OMB failed to exercise due diligence in responding to Plaintiffs’ request on the sole grounds that OMB failed to follow up on the September 30, 2015 phone call with Plaintiffs’ counsel. As the Court noted in its Memorandum Opinion issued on July 25, 2016, Plaintiffs’ counsel did not contact OMB between that phone call and the filing of the Complaint in this matter on November 11, 2015. Mem. Opinion (July 25, 2016), ECF No. [31], at 11 n.5. Additionally, OMB’s paralegal specialist does not recall the phone conversation that appears to have occurred on September 30, 2015. Hardy Second Decl., ECF No. [33-1], at ¶ 11.[1] As such, when viewed in the larger context of OMB’s broader efforts to narrow Plaintiffs’ request, OMB’s failure to follow up on the September 30, 2015 phone call appears to be nothing more than a good-faith mistake in communication, insufficient to alter the Court’s finding that OMB has met its burden of showing that it has exercised due diligence in responding to Plaintiffs’ FOIA request." See Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 610 (D.C. Cir. 1976), quoting 5 U.S.C. § 552(a)(6)(c) (“If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records.”). Moreover, as discussed above, and as discussed in greater detail in the Court’s Memorandum Opinion issued on July 25, 2016, the record evidence indicates that OMB has “committed all appropriate and available personnel to the review and deliberation process.” Id. at 612 n.11 (quoting S. Rep. on Freedom of Information Act and Amendments of 1974 (P.L. 93-502), 94th Cong., 1st Sess. 178 (1975)).

         Accordingly, the grant of an Open America stay is appropriate.

         2. OMB’s FOIA Workforce

         Plaintiffs also argue in their Motion for Reconsideration that the Court’s Order issued on July 25, 2016 “overlooks OMB’s own admission that its full-time FOIA workforce has doubled since OMB requested an Open America stay on the basis of its temporary personnel ...


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