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Judicial Watch, Inc. v. U.S. Department of State

United States District Court, District of Columbia

October 24, 2017




         Pending before the Court is defendant U.S. Department of State's motion pursuant to Federal Rule of Civil Procedure 59(e) for reconsideration of the Court's March 20, 2017 order granting in part and denying in part defendant's motion for summary judgment. Def's Mot. for Recon. & to Alter J. [Dkt. # 46] ("Def's Mot."). The Court previously concluded that two documents that defendant redacted pursuant to Freedom of Information Act ("FOIA") Exemption 5 were not exempt, and it ordered defendant to produce the two documents - C05739592 and C05739595 - to plaintiff. See Judicial Watch, Inc. v. U.S. Dep't of State, 241 F.Supp.3d 174, 185-86 (D.D.C. 2017).

         Now, the agency contends that the information withheld from those two documents is covered by FOIA Exemption 1: it was classified at the time defendant produced the redacted documents to plaintiff and when defendant filed its motion for summary judgment. Based on the Court's review of the State Department's supporting declaration, as well as the Court's previous review of the information sought to be withheld during an in camera inspection, the Court finds that the State Department failed to invoke Exemption 1 due to human error, and that disclosure of the redacted information would threaten national security. Therefore, the Court concludes that it is appropriate to reconsider its prior ruling, and it has determined that the withheld material falls within the scope of FOIA Exemption 1. Accordingly, defendant's motion for reconsideration is granted, and defendant need not disclose the redacted information within C05739592 and C05739595 to plaintiff.


         On September 4, 2014, plaintiff initiated this action against defendant under FOIA, seeking records relating to notes or reports created in response to the September 11, 2012 attack on the United States Consulate in Benghazi, Libya. Compl. [Dkt. # 1] ¶ 5. Over the next year and a half, defendant produced documents to plaintiff until it determined that it had completed processing the FOIA request. See Joint Status Report [Dkt. # 29].

         On June 6, 2016, defendant moved for summary judgment, Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. [Dkt. # 31-1] ("Def.'s Mem."), and plaintiff filed a cross-motion for summary judgment one month later, in which it challenged the State Department's withholding of certain responsive records under FOIA Exemptions 1 and 5. Pl.'s Cross-Mot. for Summ. J. [Dkt. # 34] ("Pl.'s Cross-Mot."); Pl.'s Mem. of P. & A. in Opp. to Def.'s Mem. [Dkt. # 34] ("Pl.'s Cross-Mem."). Ultimately, plaintiff narrowed its challenge to withholdings under Exemption 5's deliberative process privilege on the grounds that the government misconduct exception applied. Pl.'s Reply to Def.'s Opp. to Pl.'s Cross-Mot. [Dkt. # 40] ("Pl.'s Cross-Reply") at 1-6.[1] Also, plaintiff specifically challenged the withholding of eight identical paragraphs in two different emails, which were summaries of calls between the President of the United States and the Presidents of Libya and Egypt in the aftermath of the Benghazi attack, arguing that Exemption 5's deliberative process privilege simply did not apply to those documents. Pl.'s Cross-Mem. at 15-17; Pl.'s Cross-Reply at 1, 7-12; see also Def's Mem. at 25-26.

         After an in camera review of the documents withheld or redacted under Exemption 5, the Court granted in part and denied in part both motions for summary judgment. Judicial Watch, Inc., 241 F.Supp.3d at 179. The Court concluded that the government misconduct exemption was inapplicable in FOIA cases, and that the two documents at issue were not exempt under Exemption 5's deliberative process privilege. Id. at 182-85. Therefore, the Court ordered plaintiff to produce the two documents to plaintiff. Id. at 185-86.

         On April 17, 2017, defendant filed the pending motion, arguing that reconsideration is necessary "in order to permit [the State Department] to apply Exemption 1 to certain classified information which was previously withheld only pursuant to Exemption 5" in order to prevent compromising the nation's foreign relations or national security. Def's Mot. at 1-2. Defendant maintains that "[t]he inadvertent omission of the Exemption 1 assertion with respect to [the] two documents was the type of 'pure mistake' that can be remedied on reconsideration." Id. at 1. Plaintiff opposed the motion on May 1, 2017, arguing that defendant's failure to assert Exemption 1 was deliberate and part of a "contemporaneous effort by [defendant to avoid designating emails from Secretary Clinton's unofficial server as classified." Pl.'s Mem. of P. & A. in Opp. to Def's Mot. [Dkt. # 47] ("Pl.'s Opp") ¶¶ 1, 3. On May 5, 2017, the State Department filed a reply. Def's Reply in Supp. of Def's Mot. [Dkt. # 48] ("Def's Reply").


         "Motions under Fed.R.Civ.P. 59(e) are disfavored and relief from judgment is granted only when the moving party establishes extraordinary circumstances." Niedermeier v. Office of Max S. Baucus, 153 F.Supp.2d 23, 28 (D.D.C. 2001), citing Anyanwutaku v. Moore, 151 F.3d 1053, 1057(D.C.Cir. 1998). "A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004), quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Rule 59(e) "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." Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008), quoting 11 C. Wright & A. Miller, Fed. Prac. & Proc. § 2810.1, 127-28 (2d ed. 1995). Rather, motions to alter or amend a judgment "are intended to permit the court to correct errors of fact appearing on the face of the record, or errors of law." Hammond v. Kempthorne, 448 F.Supp.2d 114, 118 (D.D.C. 2006), quoting Indep. Petroleum Ass'n of Am. v. Babbit, 178 F.R.D. 323, 324 (D.D.C. 1998).


         As a general rule, an agency "must assert all exemptions at the same time, in the original district court proceedings." August v. FBI, 328 F.3d 697, 699 (D.C. Cir. 2003), quoting Maydak v. DOJ, 218 F.3d 760, 764-65 (D.C. Cir. 2000). However, the D.C. Circuit has "avoided adopting a 'rigid "press it at the threshold, or lose it for all times approach" to ... agencies' FOIA exemption claims.'" Id., quoting Senate of Puerto Rico v. DOJ, 823 F.2d 574, 581 (D.C. Cir. 1987). Rather, it has recognized certain situations in which an agency might raise exemptions for the first time on appeal. See Id. at 700. Of particular relevance to defendant's motion for reconsideration, the Court of Appeals has "recognized that 'there could be circumstances where, through pure mistake, the [government attorneys had not invoked the correct exemption in the district court.'" Id., quoting Jordan v. DOJ, 591 F.2d 753, 780 (D.C. Cir. 1978).

[I]f the value of the material which otherwise would be subject to disclosure were obviously high, e.g., confidential information compromising the nation's foreign relations or national security, and it appeared highly likely [it] was intended to be protected by one of the nine enumerated exemptions, then ... the appellate court would have discretion to "remand the cause and require such further proceedings to be had as may be just under the circumstances."

Id., quoting Jordan, 591 F.2d at 780 (internal citation omitted). So long as the government's failure to invoke the proper exemption was a result of "human error" and "was not an effort to gain a tactical advantage, " and the government has "taken steps to ensure that it does not make the same mistake again, " the case will be remanded to the district court to consider the ...

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