United States District Court, District of Columbia
C. LAMBERTH UNITED STATES DISTRICT JUDGE.
anyone skeptical of the truth behind the cliché that
freedom is not free, FOIA litigation is perhaps one of the
best examples of the monetary costs of open government. In
this area of law, fights over singular words and individual
sentences routinely last several rounds of administrative
review and litigation, including volleying between the
district and appellate courts. This opinion alone will
dedicate several hundred words to examining whether the
Federal Bureau of Investigation (FBI) may withhold a single
sentence from Mr. Labow on the basis of how it might relate
to a pen register used in an investigation more than six
years ago. This Court and our Court of Appeals go to great
lengths to protect the rights of FOIA plaintiffs - individual
citizens who seek to shine the light of transparency upon the
operations of their government. Sometimes they successfully
prompt the revealing of government misconduct. See, e.g.,
Judicial Watch v. U.S. Dep 't of Commerce, 34
F.Supp.2d 28 (D.D.C. 1998). Oftentimes they endeavor to
research a topic of personal interest or fulfill a historical
curiosity, and may or may not be satisfied by what is
released, versus what is withheld. In the process,
innumerable resources are poured into balancing the interests
of justice that apply in these cases, just as this Court
continues to seek the right balance in today's Opinion.
the Court are the latest motions and cross-motions for
summary judgment concerning the plaintiffs request for
disclosure of FBI records about himself, as well as the
plaintiffs motion to reconsider an earlier ruling granting
summary judgment to the government on several issues. A
thorough description of Labow's FOIA request is contained
in an earlier opinion in this matter. Labow v. U.S.
Department of Justice, 66 F.Supp.3d 104 (D.D.C. 2014)
("Labow I"), aff'd in part, rev'd
in part, vacated in part, Labow v. United States
Dep't of Justice, 831 F.3d 523 (2016)
("Labow ZT). In short, in March 2011, Labow
requested a copy of "any records pertaining to him"
from the FBI. Compl. ¶ 7. After exhausting his
administrative remedies, Labow brought suit in the district
court in July 2011. The FBI eventually released 624 pages of
responsive information, in-whole or in-part, and filed for
summary judgment in September 2013, withholding information
under FOIA Exemptions 1, 3, 6, and 7. ; [32-3] Exhs. G,
Labow I, the district court granted summary judgment
to the government defendants on all issues, including the
adequacy of the search and justifications for the claimed
Exemptions. On appeal, the D.C. Circuit affirmed the ruling
on all but two of the challenged issues,  reversing and
remanding for further findings as to the FBI's Exemption
3 withholdings pursuant to the Pen Register Act and Federal
Rule of Criminal Procedure 6(e). Labow II, 831 F.3d
government now believes it has cured the infirmaries with its
withholding justifications identified by the D.C. Circuit and
again moves for summary judgment based on the information it
has provided in an updated declaration. Labow has opposed the
government's motion, and has likewise filed a
cross-motion for summary judgment, arguing that the Pen
Register Act's nondisclosure provision is limited to pen
register orders themselves, and that information withheld
under Rule 6(e) must, on its face and standing alone,
necessarily evince a connection to a grand jury.
this Court could rule on the summary judgment motions, Labow
also filed a Motion to reconsider certain findings for the
government in Labow I arguing, in essence, that the
Court of Appeals' reversal on certain issues
simultaneously destroyed the finality of the earlier judgment
such that this Court, under Federal Rule of Civil Procedure
54(b), may revisit matters previously decided.
reasons stated below, upon consideration of Labow's
Motion  for reconsideration of the issues decided in
Labow I, defendant's opposition  and
Labow's reply thereto ; the defendant's Motion
for summary judgment , Labow's opposition  and
the government's reply thereto ; and Labow's
Cross-Motion for summary judgment , the defendant's
opposition  and Labow's reply thereto ; the
exhibits related to each of the listed filings; the documents
produced to the Court ex parte for in
camera review pursuant to its Order of July 25, 2017
; and the entire record in this case with the exception
of the non-public version of the Third Hardy Declaration,
see ,  this Court denies Labow's motion to
reconsider the issues decided in Labow I, grants the
FBI's Motion for summary judgment on the outstanding
issues except as to one document (Labow-777), and denies
Labow's Cross-motion for summary judgment, except as to
that same document.
Federal Rule of Civil Procedure 54(b)
district court may revise its own interlocutory decisions
"at any time before the entry of judgment adjudicating
all the claims and the rights and liabilities of all the
parties." Fed.R.Civ.P. 54(b); see also Muwekma Tribe
v. Babbitt, 133 F.Supp.2d 42, 47-48 (D.D.C. 2001);
Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C.
2000). Relief under Rule 54(b) is available "as justice
requires." Alston v. D.C., 770 F.Supp.2d 289,
295-996 (D.D.C. 2011) (citing Childers, 197 F.R.D.
at 190). See also Fed.R.Civ.P. 60(b) Advisory Comm.
Notes ("interlocutory judgments are ... left subject to
the complete power of the court rendering them to afford such
relief from them as justice requires.").
qualification that relief may only be granted "as
justice requires" indicates concrete considerations of
whether the court "has patently misunderstood a party,
has made a decision outside the adversarial issues presented
to the Court by the parties, has made an error not of
reasoning, but of apprehension, or where a controlling or
significant change in the law or facts [has occurred] since
the submission of the issue to the court." Cobell v.
Norton, 224 F.R.D. 266, 272 (D.D.C. 2004) (internal
the law of the case doctrine does not automatically apply to
interlocutory decisions, Langevine v. Dist. of
Columbia, 106 F.3d 1018, 1022-23 (D.C. Cir. 1997), the
court uses its underlying rationale in a Rule 54(b) analysis.
See Burlington Ins. Co. v. Okie Dokie, Inc., 439
F.Supp.2d 124, 131-32 (D.D.C. 2006). That doctrine, which
"posits that when a court decides upon a rule of law,
that decision should [generally] continue to govern the same
issues in subsequent stages in the same case, "
Arizona v. California, 460 U.S. 605, 618 (1983), is
applicable "as much to decisions of a coordinate court
in the same case as to a court's own decisions."
Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 816 (1988) (citations omitted). The law of the case
doctrine dictates that a district court cannot reconsider on
remand an issue decided by an appellate court. See
Insurance Group Comm. v. Denver & Rio Grande W.
R.R., 329 U.S. 607, 612 (1947); Griffin v. United
States, 935 F.Supp. 1, 5 (D.D.C. 1995) (citing
J.W. Moore, IB Moore's Federal Practice, ¶
0.404 at p. II-3 (2nd ed. 1994) ("[w]hen a case is
appealed and remanded, the decision of the appellate court
establishe[s] the law of the case, which must be followed by
the trial court on remand.").
Summary Judgment on FOIA Exemption 3
judgment is appropriate where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." FED.
R. Crv. PRO. 56(a). As applied in a FOIA case, an agency
defendant may be entitled to summary judgment if it
demonstrates that 1) no material facts are in dispute, 2) it
has conducted an adequate search for responsive records, and
3) each responsive record that it has located has either been
produced to the plaintiff or is exempt from disclosure.
Miller v. U.S. Dep't of Justice, 872 F.Supp.2d
12, 18 (D.D.C. 2012) (citing Weisbergv. DOJ, 627
F.2d 365, 368 (D.C. Cir. 1980)). As to the third prong, this
Court determines de novo whether an agency has
properly withheld information under a claimed FOIA exemption.
See Mead Data Cent., Inc. v. Dep't of Air Force,
566 F.2d 242, 251 (D.C. Cir. 1977). An agency claiming an
exemption to FOIA bears the burden of establishing that the
exemption applies. Fed. Open Mkt. Comm. of Fed. Reserve
Sys. v. Merrill, 443 U.S. 340, 352 (1979), and "the
underlying facts are viewed in the light most favorable to
the [FOIA] requester." Weisberg, 705 F.2d at
1350. Exemptions must be narrowly construed. FBI v.
Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d
agency must supply "a relatively detailed justification,
specifically identifying the reasons why a particular
exemption is relevant and correlating those claims with the
particular part of a withheld document to which they
apply." Mead Data Cent., 566 F.2d at 251. The
requisite specificity "imposes on the agency the burden
of demonstrating applicability of the exemptions invoked
as to each document or segment withheld." King v.
U.S. Dep't of Justice, 830 F.2d 210, 224 (D.C. Cir.
1987) (emphasis original). Though the affidavits need not
contain factual descriptions the public disclosure of which
would endanger the agency's mission, Vaughn v.
Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973), they must
feature "the kind of detailed, scrupulous description
[of the withheld documents] that enables a District Court
judge to perform a de novo review." Church of
Scientology of Cat., Inc. v. Turner, 662 F.2d 784, 786
(D.C. Cir. 1980). "Agency affidavits are accorded a
presumption of good faith." SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991); Ground
Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir.
enumerated exemptions in the FOIA, Exemption 3 is the only
one at issue here. Exemption 3 allows an agency to withhold
records that are specifically exempted from disclosure by
statute under conditions dictated by the FOIA. An Exemption 3
statute must either (i) require that the relevant
"matters be withheld from the public in such a manner as
to leave no discretion on the issue;" or (ii) establish
"particular criteria for withholding or refer to
particular types of matters to be withheld." 5 U.S.C.
§ 552(b)(3)(A). The Pen Register Act, 18 U.S.C. §
3123(d), and Federal Rule of Criminal Procedure 6(e), are
such statutes. See Labow II, 831 F.3d at 527
(finding the Pen Register Act to satisfy subpart (ii),
without examining subpart (i)); Fund for Constitutional
Gov't v. Nat'l Archives & Records Serv., 656
F.2d 856, 867-68 (D.C. Cir. 1981) (finding Rule 6(e)
qualifies as an Exemption 3 statute under what is now subpart
(i), without examining subpart (ii)). When reviewing
Exemption 3 claims, this ...