United States District Court, District of Columbia
E. Boasberg United States District Judge.
June, this Court granted Plaintiff Cable News Network's
motion to unseal certain judicial records. In its opposition
to that request, Defendant Federal Bureau of Investigation
never mentioned Freedom of Information Act Exemption 3. Nor
did that exemption make any appearance in an FBI agent's
declaration filed in support of the Government's
position. In now seeking partial reconsideration of the
Court's decision, the Bureau nevertheless contends that
the Court's failure to address Exemption 3 constituted
either “clear error” or “manifest
injustice.” The Court, Defendant believes, should have
construed three sentences of the declaration - which referred
to a different statute altogether - as not only invoking FOIA
Exemption 3 but also fulfilling Defendant's burden of
demonstrating the applicability of that exemption, and thus
delivering it victory. While such a position certainly takes
chutzpah, it does not take the cake here. The Motion for
Reconsideration will be denied.
broke in May of 2017 that former FBI Director James Comey had
penned several memos documenting his meetings with President
Trump. This revelation set off a mad dash by several media
outlets - including CNN - to get their hands on the
documents, which, like many disputes concerning government
records, soon fell to the courts. Over the last two years,
CNN's suit against the Bureau has gone through several
twists and turns before arriving at the present Motion. Only
an abbreviated rehearsal of this history need be repeated
February 2018, this Court granted the FBI's first request
for summary judgment and refused to release the Comey memos,
citing the then-ongoing nature of the Special Counsel's
investigation into Russian interference in the 2016 election.
See Cable News Network, Inc. v. FBI, 293 F.Supp.3d
59, 77 (D.D.C. 2018). In coming to this determination, the
Court relied on two declarations from FBI Special Agent David
W. Archey, filed under seal, and an ex parte proffer
session. Id at 66-67. CNN appealed, but before much
could happen in that proceeding, outside circumstances
changed. The Government turned over redacted versions of the
memos to Congress, which in turn released them to the public.
The Circuit thus remanded the matter to this Court to
consider the propriety of the remaining withheld material.
See Cable News Network, Inc. v. FBI, 2018 WL
3868760, at *1 (D.C. Cir. Aug. 8, 2018). Both parties again
moved for summary judgment. The ensuing proceedings
culminated in a decision in June granting in part and denying
in part summary judgment to both CNN and the FBI. See Cable
News Network, Inc. v. FBI, 2019 WL 2408644, at *1
(D.D.C. June 7, 2019).
conjunction with its second motion for summary judgment, CNN
also filed a simultaneous motion for access to the two FBI
declarations filed during the first round of summary-judgment
briefing, as well as a transcript of the ex parte
proffer. See ECF No. 72 (Pl. Access Mot.). Plaintiff
sought this information under both common-law and First
Amendment rights of access to judicial records. Id.
In response to CNN's motion, the FBI eventually turned
over much of the requested information. See ECF No.
76 (Def. Access Opp.) at 2; ECF No. 75, Attach. 1
(Declaration of Michael Seidel); ECF No. 81, Attach. 1
(Declaration of David M. Hardy); ECF No. 84 (Notice). Its
redactions to one declaration, however, required judicial
intervention. See Hardy Decl., ¶ 6. On this
lingering dispute, the Court ruled that Plaintiff had met its
burden under the common-law right of access. See CNN, 2019 WL
2408644, at * 17. The network, therefore, was entitled to see
the last unredacted Archey declaration.
now seeks reconsideration of this last decision. It has moved
under Rule 59(e) to request that the Court revisit its prior
reasoning, urging it to amend the Opinion to reflect that the
Bureau “effectively asserted” FOIA Exemption 3 as
a basis to protect the redactions in the declaration. See ECF
No. 87, Attach. 1 (Def Mot.) at 1; see also ECF No. 92 (Def
Reply) at 1-2 (similar). Defendant then asks that the Court
find that this exemption covers the information at issue and,
accordingly, reverse its judgment. See Def. Mot. at
Rule of Civil Procedure 59(e) permits the filing of a motion
to alter or amend a judgment when such motion is filed within
28 days after the judgment's entry. The Court must apply
a “stringent” standard when evaluating Rule 59(e)
motions. See Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir.
2004) (citation omitted). “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.” Firestone v. Firestone, 76 F.3d
1205, 1208 (D.C. Cir. 1996) (internal quotation marks and
citation omitted). Critically, Rule 59(e) “is not a
vehicle to present a new legal theory that was available
prior to judgment.” Patton Boggs LLP v. Chevron
Corp., 683 F.3d 397, 403 (D.C. Cir. 2012).
FBI's core contention is that the Court failed to notice
that the Government had asserted the protection of FOIA
Exemption 3 in connection with the access motion. This
exemption covers material “specifically exempted from
disclosure by [a] statute.” 5 U.S.C. § 552(b)(3).
Had the Court spotted its argument and taken up this
exemption on the merits, Defendant asserts, it would have
ruled in the FBI's favor. See Def. Mot. at 1,
3-4. A reader familiar with the briefing in this case,
however, would be forgiven for being confused about the basis
for such Motion. Not once, as the FBI concedes, did it
mention this exemption in any of its filings pertaining to
the access motion. Id. at 3. The path by which the
Bureau reaches its conclusion that the Court erred,
therefore, requires a bit of explanation.
filed its access motion in January of 2018. In
Defendant's opposition, it tossed up a slew of reasons
why Plaintiff should not get the information it wished under
the common-law right of access to judicial records.
See ECF No. 76 (Def. Access Opp.) at 3-6, 10-11.
That Exemption 3 covered the material at issue, however, was
not one of them.
few weeks after briefing wrapped up on that motion - and
following the Special Counsel's announcement that his
investigation had concluded - the FBI withdrew some of its
redactions to the Archey declaration, but retained others.
See ECF No. 79; ECF No. 81. To its release of the
final version of the document at issue, which still contained
some redactions, the Government attached the sworn
declaration of another FBI special agent, David Hardy, who
explained the FBI's rationale for its continued
tight-fistedness over the remaining redacted information.
Hardy pointed out that the FBI had determined that certain
material must remain secret “in order to protect FBI
law enforcement interests, ” even though the Special
Counsel's investigation had concluded. Id.,
¶ 6. This was so, he said, for two reasons. First, the
redactions contained “non-public information about
intelligence methods” that the FBI was “obligated
to protect . . . under the National Security Act of
1947.” Id In addition, Hardy continued,
“some of these same redactions could, if lifted, expose
information that the FBI would typically redact under
Exemption (b)(7)(E) in a FOIA case.” Id
Opinion, the Court addressed each of these two reasons in
turn. It first concluded that, contrary to what the Hardy
declaration seemed to imply, invoking the National Security
Act was not a way around the common-law right of access to
judicial records. See CNN, 2019 WL 2408644, at *12-13. This
conclusion followed closely from the D.C. Circuit's
reasoning in Metlife, Inc. v. Financial Stability
Oversight Council865 F.3d 661, 669-73 (D.C. Cir. 2017).
The FBI's first avenue, therefore, could not deliver the
outcome it sought. Next, the Court turned to the sentence in
Hardy's declaration that mentioned FOIA Exemption 7(E).
It concluded that the FBI's brief and equivocal statement
fell far short of meeting its burden. CNN, 2019 WL
2408644, at * 14. ...