United States District Court, District of Columbia
MEMORANDUM OPINION & ORDER
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
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
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.
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].
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. 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.
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.
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").
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.
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
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 ...