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Labow v. U.S. Department of Justice

United States District Court, District of Columbia

August 16, 2017

U.S. Department of Justice, Defendant.



         I. Background

         For 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.

         Before 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]; [32-3] Exhs. G, H, K.

         In 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, [1] 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 at 534.

         The 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.

         Before 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.

         For the reasons stated below, upon consideration of Labow's Motion [72] for reconsideration of the issues decided in Labow I, defendant's opposition [76] and Labow's reply thereto [77]; the defendant's Motion for summary judgment [64], Labow's opposition [67] and the government's reply thereto [70]; and Labow's Cross-Motion for summary judgment [68], the defendant's opposition [69] and Labow's reply thereto [71]; 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 [78]; and the entire record in this case with the exception of the non-public version of the Third Hardy Declaration, see [47], [2] 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.

         II. Legal Standards

         A. Federal Rule of Civil Procedure 54(b)

         A 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.").

         The 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 citation omitted).

         Although 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[1] 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.").

         B. Summary Judgment on FOIA Exemption 3

         Summary 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 376 (1982).

         The 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. 1981).

         Of the 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 ...

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