United States District Court, District of Columbia
BARRY R. SCHOTZ, Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
A. HOWELL CHIEF JUDGE
action brought under the Freedom of Information Act
(“FOIA”) concluded on April 20, 2016, with the
Court's entry of judgment for the Defendant. The
plaintiff, Barry R. Schotz, has moved separately for
reconsideration of the judgment, ECF No. 41, and for fees and
costs, ECF No. 43. The defendant has opposed each motion, ECF
No. 52. For the reasons explained below, the plaintiff's
motions will be denied.
The Plaintiff's Motion to Reconsider
plaintiff seeks relief under Fed.R.Civ.P. 60(b)(2) and
(b)(6). See Recon. Mot. At 1. Those provisions
provide in relevant part as follows:
On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or
proceeding for the following reasons:
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); . . .
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(2) and (6). Under Rule 60(b)(6), the
Court has “ ‘broad authority to relieve a party
from a final judgment . . . provided that the motion . . . is
not premised on one of the grounds for relief enumerated in
clauses (b)(1) through (b)(5)[.]' ” Salazar ex
rel Salazar v. District of Columbia, 633 F.3d 1110, 1116
(D.C. Cir. 2011) (quoting Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 863 (1988)).
Furthermore, “relief under Rule 60(b)(6) is appropriate
only in extraordinary circumstances.” Cohen v. Bd.
of Trustees of the Univ. of the D.C., 819 F.3d 476, 485
(D.C. Cir. 2016) (quoting Kramer v. Gates, 481 F.3d
788, 790 (D.C. Cir. 2007) (other citation and internal
quotation marks omitted)).
party seeking relief under Rule 60(b) bears the burden of
proof to show that he is entitled to the relief. Norris
v. Salazar, 277 F.R.D. 22, 25 (D.D.C. 2011). A
Athreshold requirement for obtaining [such] relief@ is the
demonstration of “a meritorious claim or defense to the
motion upon which the district court dismissed the
complaint.” Murray v. District of Columbia, 52
F.3d 353, 355 (D.C. Cir. 1995) (citation and internal
quotation marks omitted)); see Thomas v. Holder, 750
F.3d 899, 902 (D.C. Cir. 2014) (noting that in the context of
a Rule 60(b) motion, “it is well-established that
movants must show that their underlying claims have at least
some merit”). This “established . . .
precondition” assures that “vacating [a] judgment
will not be an empty exercise or a futile gesture.”
Murray, 52 F.3d at 355. “[T]he decision to
grant or deny a rule 60(b) motion is committed to the
discretion of the District Court.” United Mine
Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d
469, 476 (D.C. Cir. 1993). In exercising this discretion, the
Court “must balance the interest in justice with the
interest in protecting the finality of judgments.”
Summers v. Howard Univ., 374 F.3d 1188, 1193 (D.C.
plaintiff contends that he “is entitled to Summary
Judgment on Claims 2 & 10” based on purported newly
discovered evidence. Recon. Mot. at 4. He posits: “[i]t
was not that BOP did not reasonably search the records they
noted, it is that they limited the search to sources they
knew would not produce the records[.]” Id. at
3. The plaintiff has produced no direct evidence to
corroborate that assertion. Rather, he proffers a cover
letter dated April 26, 2016, to show that the BOP released
574 pages of records responsive to his FOIA request processed
in 2016, see id., Ex. A, and he suggests that a few
of those pages were responsive to the earlier requests
underlying claims two and ten, see Recon. Mot. at
only evidence that qualifies as ‘newly-discovered'
evidence within the meaning of the rule justifying setting
the judgment aside is evidence of facts that were in
existence at the time of the original trial or that relate
directly to the facts that were tried.” Lans v.
Gateway 2000, Inc., 110 F.Supp.2d 1, 4 (D.D.C. 2000)
(quoting 12 James Wm. Moore, et al., Moore's
Federal Practice § 60.42 (3d ed. 1999)); see
accord Lindsey v. D.C., 609 F.Supp.2d 71, 78 (D.D.C.
2009) (“To satisfy the requirements of Rule 60(b)(2),
‘the movant must demonstrate, ' inter
alia, that ‘the newly discovered evidence is of
facts that existed at the time of trial or other dispositive
proceeding.'”) (quoting Lightfoot v. District
of Columbia, 555 F.Supp.2d 61, 68 (D.D.C. 2008) (other
citations omitted)). The BOP's 2016 release determination
is dated after the date of the final judgment entered in this
case, and it involves a 2016 FOIA request that was not a
subject of this action either initially or by amendment.
Therefore, the plaintiff's claim of newly discovered
evidence is unavailing. Nevertheless, the fact that the 2016
release might have included pages responsive to the
plaintiff's earlier requests would not warrant reopening
this matter since it is possible that the defendant's
“reasonable and thorough search may have missed
them[.]” Iturralde v. Comptroller of Currency,
315 F.3d 311, 315 (D.C. Cir. 2003). Moreover, reopening this
matter would prove futile. The plaintiff appears to be
satisfied with BOP's 2016 release, and “however
fitful or delayed the release of information under the FOIA
may be, once all requested records are surrendered, federal
courts have no further statutory function to perform.”
Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982).
Even if the plaintiff is not satisfied, he must as a general
rule exhaust his administrative remedies with the agency
before obtaining judicial review. See Wilbur v. CIA,
355 F.3d 675, 677 (D.C. Cir. 2004) (“[T]he FOIA's
administrative scheme ‘favors treating failure to
exhaust as a bar to judicial review.' ”) (quoting
Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir.
The Plaintiff's Motion for Costs
pro se action, the FOIA permits a district court to
“assess against the United States . . . litigation
costs reasonably incurred in any case . . . in which the [pro
se plaintiff] has substantially prevailed.” 5 U.S.C.
§ 552(a)(4)(E)(i). A party substantially prevails if he
“has obtained relief through either . . . a judicial
order . . . or . . . a voluntary or unilateral change in
position by the agency, if the complainant's claim is not
insubstantial.” 5 U.S.C. § 552(a) (4)(E)(ii).
“Thus, a plaintiff substantially prevails when he or
she can demonstrate that ‘the institution and
prosecution of the litigation cause[d] the agency to release
the documents obtained during the pendency of the
litigation.'” Dorsen v. United States Sec.
& Exch. Comm'n, 15 F.Supp.3d 112, 118 (D.D.C.
2014) (quoting Church of Scientology of California v.
Harris, 653 F.2d 584, 587 (D.C. Cir. 1981)).
exercising its discretion to award costs under the FOIA, a
court must first determine the plaintiff's eligibility
for such an award, i.e., whether he substantially
prevailed in the litigation, and then his entitlement to the
requested costs. See United Amer. Financial, Inc. v.
Potter, 770 F.Supp.2d 252, 254-55 (D.D.C. 2011) (citing
Weisberg v. U.S. Dep't of Justice, 848 F.2d
1265, 1268 (D.C. Cir. 1988); Burka v. U.S. Dep't of
Health & Human Serv., 142 F.3d 1286, 1288 (D.C. Cir.
1998)). The plaintiff is ineligible for an award because (1)
he did not prevail by judicial order, and (2) ...