United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
James Madison Project challenges the adequacy of the
responses to its FOIA requests that were sent to the
Department of Justice and various constituent agencies of
DOJ, the Department of Defense and various constituent
agencies of DoD, and the Central Intelligence Agency. The
James Madison Project also requests leave to amend its
Complaint under Federal Rule of Civil Procedure 15(a). The
Court will deny Plaintiff's motion for leave to file an
amended complaint and grant in part and deny in part
Defendants' motion for summary judgment.
is The James Madison Project, “a non-partisan
organization established in 1998 to promote government
accountability and the reduction of secrecy, as well as
educating the public on issues relating to intelligence and
national security.” Compl. [Dkt. 1] ¶ 3. Founded
by Mark Zaid, The James Madison Project is “always
looking for ways to better develop the laws and policies
surrounding the Freedom of Information and Privacy Acts, and
foster greater openness in our society without unnecessarily
infringing upon any individual's right to privacy.”
James Madison Project, About The James Madison Project,
www.jamesmadisonproject.org (last visited Sept. 15, 2016).
requested records from the Executive Office for the United
States Attorneys (EOUSA) and the DOJ Civil Division, both
within Defendant DOJ; the Navy and the Defense Intelligence
Agency (DIA), both within Defendant DoD; and Defendant CIA.
The identical requests “specifically sought copies of
records, including cross-references, pertaining to the Book
“No Easy Day: The Firsthand Account of the Mission that
Killed Osama Biden Laden [sic].” (No Easy Day). Compl.
¶ 7. Plaintiff sought:
1. Legal analyses of the extent to which the author of No
Easy Day, identified by the pseudonym Mark Owen (“Mr.
Owen”), was bound by non-disclosure agreements to
submit written manuscripts for pre-publication review;
2. Analyses of the extent to which information contained
within the published version of No Easy Day remains properly
3. Any “damage” or “harm” assessments
made regarding the impact that the disclosure of any properly
classified information has had upon the national security of
the United States;
4. Legal analyses of the viability of taking legal action
against Mr. Owen, including civil and/or criminal litigation;
5. Any documentation memorializing analyses of administrative
measures that could be taken against Mr. Owen, including with
respect to his continued eligibility for access to classified
6. Legal analyses of the viability of taking legal action
against the Penguin Group USA, the company that published No
Id. ¶ 8. The period of time from which records
were sought was January 1, 2011 to the date of acceptance of
the request at each recipient. See Id. It is to be
noted that Plaintiff claims no relationship with Mr. Owen or
his real-life counterpart.
Civil Division “represents the United States, its
departments and agencies, Members of Congress, Cabinet
Officers, and other federal employees in any civil or
criminal matter within its scope of responsibility.”
DOJ, About the Civil Division, www.justice.gov/ civil/about
(last visited Sept. 15, 2016). The Civil Division
acknowledged receipt of Plaintiff's July 30, 2014 FOIA
request by letters dated July 31, 2014 and August 18, 2014.
Declaration of Angie E. Cecil [Dkt. 9-1] (Cecil Decl.)
¶¶ 3-5. By letter dated September 12, 2014, the
Civil Division provided its final response, informing
Plaintiff that it could not release records requested in
items 1, 4, and 5 because “without consent, proof of
death, or an overriding FOIA public interest, disclosure of
law enforcement records concerning an individual would
constitute a clearly unwarranted invasion of personal
privacy.” Cecil Decl. ¶ 5 (citing 5 U.S.C.
§§ 552(b)(6), (7)(C) (2006 & Supp. II 2010)).
The final response further stated that, regarding items 3 and
6, “‘any information related to such assessments
or legal analyses that may exist is protected from disclosure
under the FOIA pursuant to 5.U.S.C. § 552(b)(5), '
citing the deliberative process privilege, the attorney work
product privilege, and the attorney-client privilege.”
Id. In further response, the Civil Division informed
Plaintiff that it was referring records responsive to item 2
to the DoD for processing and direct response. Id.;
see id., Ex. D (final response letter).
“disclosure of law enforcement records . . . could
reasonably be expected to constitute an unwarranted invasion
of personal privacy, ” the Civil Division did not
conduct a search for records responsive to items 1, 4, and 5
of Plaintiff's request. Id., Ex. D at 1. The
Cecil Declaration explains that:
[I]tem 1 sought “legal analyses of the extent to which
the author . . . was bound by non-disclosure agreements to
submit written manuscripts for pre-publication review.”
Item 4 sought “legal analyses of the viability of
taking legal action against Mr. Owen.” Item 5 sought
“any documentation memorializing analyses of
administrative measures that could be taken against Mr.
Id. ¶ 9. Plaintiff proffered no consent or
proof of death and the Civil Division rejected its argument
that Mr. Owen had diminished privacy rights due to the
publicity and fame of his book so that there was an
overriding public interest. In addition, the Civil Division
stated that Plaintiff's argument that “releasing
the records would shed light on the government's
investigation of the matter, ” Id. ¶ 10,
did “not constitute an overriding public interest to
diminish an individual's privacy interests as the subject
of an investigation, particularly such a sensitive
investigation involving the potential release of classified,
national security information.” Id. ¶ 11.
items 2, 3 and 6 of Plaintiff's FOIA request, the
Division identified those attorneys most likely to have
responsive records. These persons were all members of the
Federal Programs Branch. “In response to item 2 of the
request, the Division attorneys located one document, which
originated with DOD [sic].” Id. ¶ 12.
Determination of whether that record could be released was
referred to DoD. See id., Ex. D at 1. “In
response to items 3 and 6 o[f] the request, Division
attorneys identified a volume of records.” Id.
¶ 12. Thereafter, DOJ determined that the searches were
complete. Id. ¶ 13. Records responsive to
request items 3 and 6 were withheld under Exemption 5, 5
U.S.C. § 552(b)(5), based on attorney work product,
attorney-client communications, and the deliberative process
privilege. Id. ¶¶ 14-17. No segregable
information was identified. Id. ¶ 18.
despite the requirement that an agency identify the volume of
responsive records withheld in whole and a description of the
individual records withheld, the Civil Division did not do
so, based on Ms. Cecil's determination that
“revealing the volume of responsive records or
describing the individual documents withheld could indicate
the level of importance associated with a particular issue .
. ., [including] the attorneys' strategies or areas of
emphasis in their legal analyses, or the lack thereof.”
Id. ¶ 20. She added that, “[p]articular
to this request, ” revealing a volume estimate of
records reflecting any assessment of damage or harm to the
United States or the viability of taking legal action against
the publisher could reveal the emphases placed on each aspect
of impact and, thus, attorney strategies and work product.
appealed by letter dated September 15, 2014. See
id., Ex. E. The Office of Information Policy (OIP), DOJ,
affirmed the Civil Division's final response by letter
dated January 21, 2015. See id., Ex. G.
submitted its No Easy Day FOIA request to EOUSA by email
dated January 30, 2014. Declaration of John Kornmeier [Dkt.
9-2] (Kornmeier Decl.) ¶ 3. EOUSA issued its final
response by letter dated December 8, 2014. Id.
¶ 5. That letter stated that EOUSA had searched the U.S.
Attorney's Office for the Eastern District of Virginia
and located no responsive records. Id., Ex. B. It
specifically informed Plaintiff that its December 8 letter
was its final decision and that if Plaintiff were not
satisfied, it had sixty (60) days to file an administrative
appeal. Id. Plaintiff did not file an administrative
appeal. Id. ¶ 6.
states that it never received any response from EOUSA and
that it had no obligation to exhaust administrative remedies.
Following Defendants' filing of the Motion to Dismiss,
Plaintiff submitted a second, identical set of FOIA requests
to EOUSA on February 12, 2016. See Mot. to Amend, Ex. 3 [Dkt.
13-6]. Plaintiff has received no substantive response from
EOUSA regarding this FOIA request. Plaintiff moved to amend
its Complaint to include claims against EOUSA related to its
second, 2016, No Easy Day FOIA request.
months later, on July 30, 2014, Plaintiff submitted its No
Easy Day FOIA request directly to DoD. Herrington Decl.
¶ 3. DoD responded on February 10, 2016. Id.
¶ 4. DoD informed Plaintiff that responsive records
existed, but it was withholding them under FOIA Exemption 5.
Id., Ex. B. Further, DoD stated that it could not
provide the number of records withheld, the dates of such
records, or a description of them without compromising the
information Exemption 5 was designed to protect. Id.
Because DoD's response occurred after the commencement of
this litigation, Plaintiff's administrative appeal rights
are moot. See Bayala v. Dep't of Homeland
Security, 827 F.3d 31, 35-36 (D.C. Cir. 2016).
Complaint alleges that Plaintiff submitted by fax its No Easy
Day FOIA request to Navy on July 30, 2014. Compl. ¶ 25.
Navy has submitted a declaration in this Court that states
that Navy has searched and has found no record of ever
receiving Plaintiff's No Easy Day FOIA request.
Declaration of Robin L. Patterson [Dkt. 9-4] (Patterson
Decl.) ¶ 4. Navy searched its online case management
system and the Naval Special Warfare Command-the Navy
component most likely to maintain responsive records-and did
not locate any record of the request. Id. Plaintiff
challenges that response with the submission of a fax cover
sheet that indicates that Plaintiff sent a fax to Navy on
August 2, 2014, and that the fax was successfully
“transmitted.” See Mot. to Amend, Ex. 1 [Dkt.
13-4]; id., Ex. 2 [Dkt. 13-5] ¶ 5. Plaintiff
assails Navy's arguments here and demands discovery into
the operation of Navy's fax machine.
Defendants' filing of the Motion to Dismiss, Plaintiff
submitted a second, identical FOIA request to Navy on
February 24, 2016. See Mot. to Amend, Ex. 3 [Dkt. 13-7].
Plaintiffs have received no substantive response from Navy
regarding this second FOIA request. Plaintiff moved to amend
its Complaint to include claims against Navy related to the
second No Easy Day FOIA request.
submitted the No Easy Day FOIA request to DIA on July 30,
2014. Declaration of Alesia Y. Williams [Dkt. 9-5] (Williams
Decl.) ¶ 5. DIA initiated a search of its two primary
databases on August 11, 2014, using the term “No Easy
Day.” Id. ¶ 6. It identified two
responsive records, both of which originated at other
agencies. Id. ¶ 8. DIA referred one of the
records to Navy and the other to the National Security Agency
(NSA), id., and notified Plaintiff of the referrals
on February 1, 2016. See Id. ¶ 12;
id., Ex. C. Navy responded directly to Plaintiff on
April 15, 2015 and released the responsive record in its
entirety. See Compl. ¶ 30.
responded directly to Plaintiff by letter dated January 29,
2016. See NSA Letter [Dkt. 9-10]. NSA told Plaintiff that the
responsive record referred to it by DIA is a summary of press
reports and that producing the record would violate NSA's
subscription contracts with its news services. Id.
Accordingly, NSA withheld the record in full under FOIA
Exemption 4. Id. “Plaintiff's counsel has
informed Defense counsel that [Plaintiff] is not interested
in published press reports and does not intend to challenge
NSA's withholding.” MSJ [Dkt. 9] at 5. Further,
Plaintiff “concedes that DIA conducted a legally
sufficient search.” Opp'n to MSJ [Dkt. 12] at 8
n.5. Because NSA's response was received after the
commencement of this litigation, Plaintiff's
administrative appeal rights are moot. See Bayala,
827 F.3d at 35-36.
also submitted the same No Easy Day FOIA request to CIA on
July 30, 2014. Declaration of Antoinette B. Shiner [Dkt. 9-6]
(Shiner Decl.) ¶ 13. On August 4, 2014, CIA informed
Plaintiff that its request was received and assigned
reference number F-2014-02190. Id. ¶ 15;
see id., Ex. B. In a letter dated September 4, 2014,
CIA informed Plaintiff that it would have no records
responsive to item 1, that is, legal analyses of the extent
to which the author of No Easy Day, identified by the
pseudonym Mark Owen, was bound by non-disclosure agreements
to submit written manuscripts for pre-publication review, and
referred Plaintiff to DoD for that request. Id.
¶ 16; see id., Ex. C. By letter dated January
22, 2016, CIA issued its final response to Plaintiff's
FOIA request. Id. ¶ 18; see id., Ex. D. In that
letter, CIA told Plaintiff that it had identified and was
withholding forty-one (41) records in their entirety under
various FOIA Exemptions discussed below. Id.;
see also id., Ex. D. Because CIA's response was
received after the commencement of this litigation,
Plaintiff's administrative appeal rights are moot.
See Bayala, 827 F.3d at 35-36.
sued all of the agencies listed above in a six-count
Complaint on August 12, 2015. The Complaint alleges that each
Agency and Department violated FOIA and that the claimed
exemptions do not apply. Defendants answered on October 2,
2015. On February 11, 2016, Defendants moved for summary
judgment. See MSJ. Plaintiff opposed and moved for leave to
file a first amended complaint on March 24, 2016. See
Opp'n to MSJ; Mot. to Amend. Defendants oppose
Plaintiff's motion to amend. See Opp'n to Mot. to
Amend [Dkt. 15]. The merits are fully briefed and both
motions are ripe for resolution.
Federal Rule of Civil Procedure 15(a)
Federal Rule of Civil Procedure 15(a), a party may amend its
pleading once as a matter of course before a responsive
pleading is served. Fed.R.Civ.P. 15(a). Federal Rule of Civil
Procedure 15(a) provides:
(1) Amending as a Matter of Course. A party may amend its
pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend
its pleading only with the opposing party's written
consent or the court's leave. The court should freely
give leave when justice so requires.
Fed. R. Civ. P. 15(a). "Motions to dismiss and for
summary judgment do not qualify as responsive pleadings for
the purposes of Rule 15." Boyd v. District of
Columbia, 465 F.Supp.2d 1, 3 (D.D.C. 2006) (citing
James Hurson Assocs., Inc. v. Glickman, 229 F.3d
277, 283 (D.C. Cir. 2000); Bowden v. United States,
176 F.3d 552, 555 (D.C. Cir. 1999); U.S. Info. Agency v.
Krc, 905 F.2d 389, 399 (D.C. Cir. 1990)).
grant or denial of leave lies in the sound discretion of the
district court." Adams v. Quattlebaum, 219
F.R.D. 195, 197 (D.D.C. 2004) (citing Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). A court
may deny a motion to amend if it finds "undue delay, bad
faith or dilatory motive on part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, [or] undue prejudice to the opposing party."
Foman v. Davis, 371 U.S. 178, 182(1962).
amendment is sought shortly after discovery ends but before
summary judgment briefing has commenced, the prejudice to a
defendant "if any, is minimal and it simply does not
override the liberal standard that this Court must apply when
determining whether to grant leave to amend under
Fed.R.Civ.P. 15." Ellis v. Georgetown Univ.
Hosp., 631 F.Supp.2d 71, 80 (D.D.C. 2009). Indeed, as
the court noted in Ellis, "any potential
prejudice would be ameliorated by supplemental discovery
related to" the new allegations. Id. at 79.
"[W]here a defendant has filed a dispositive motion . .
. and plaintiff has opposed it, denial of permission to amend
is proper." Moldea v. New York Times Co., 793
F.Supp. 338, 338 (D.D.C. 1992) (citing Wilderness Society
v. Griles, 824 F.2d 4, 19 (D.C. Cir. 1987)).
there has been an "unexplained delay in pleading"
previously-known allegations is "another important
consideration." Societe Liz, S.A. v. Charles of the
Ritz Grp., Ltd.,118 F.R.D. 2, 4 (D.D.C. 1987); see
also LaPrade v. Abramson, No. 97-10, 2006 WL 3469532, at
*5 (D.D.C. Nov. 29, 2006) (denying leave to file a fourth
amended complaint where the plaintiff had ...