United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2005 Decided February 14, 2006
No. 04-5235
ROGER HALL
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 98cv01319)
James H. Lesar argued the cause and filed the briefs for
appellant.
Carol Hrdlicka, pro se, filed the brief as amicus curiae in
support of appellant.
Megan L. Rose, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R.
Craig Lawrence and Diane M. Sullivan, Assistant U.S.
Attorneys, entered appearances.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Roger Hall, the plaintiff-
appellant in this case, has made three sets of requests to the
Central Intelligence Agency under the Freedom of Information
Act (“FOIA”), seeking information about prisoners of war and
individuals missing in action in the Vietnam War. The
procedural ins and outs of the resulting litigation have been
disconcertingly complex but for the most part need not be
recited. The key issues between the parties relate to whether
Hall was eligible for complete or partial waiver of fees for
document search, review, and duplication. But the CIA’s
decision to deliver “the documents at issue in this case” to Hall
without seeking payment moots these issues, as we will explain.
Although there appear to be lingering disputes over the
scope of the CIA’s search and the validity of its exemption
claims, the merits of those issues are not before us because of a
procedural twist: Hall failed to file a timely appeal from the
district court’s final order dismissing the case. As a result the
only reviewable order is the court’s denial of Hall’s motion for
reconsideration. With respect to each of Hall’s claims we find
either that they were mooted by the CIA’s release of documents
or that the district court did not abuse its discretion in denying
them.
* * *
In 1994 and 1998 Hall filed FOIA requests seeking
information held by the CIA. Having received what he
considered an inadequate response to the first request and no
response to the later request within twenty business days as
3
required by FOIA, see 5 U.S.C. § 552(a)(6)(A)(i), he filed suit
in district court. The CIA thereupon released some documents
to Hall but withheld others in whole or in part.
The CIA moved for summary judgment, arguing that its
searches were adequate and that it had properly invoked various
FOIA exemptions to justify the withholding and redacting of
some documents. The court ruled that the CIA’s affidavits were
insufficient for evaluation of the searches’ adequacy and ordered
submission of additional affidavits; as to the FOIA exemptions,
it ruled largely but not entirely for the agency. Mem. Op. (Aug.
10, 2000).
A battle then ensued on the issue of fees. FOIA allows
agencies to charge different fees for different kinds of requests.
When records are sought for commercial use, an agency may
charge fees for document search, duplication, and review. 5
U.S.C. § 552(a)(4)(A)(ii)(I). When a representative of the news
media (inter alia) seeks records, the agency may collect only
duplication fees. § 552(a)(4)(A)(ii)(II). When disclosure “is in
the public interest because it is likely to contribute significantly
to public understanding of the operations or activities of the
government and is not primarily in the commercial interest of
the requester,” the agency must reduce fees further or eliminate
them altogether. § 552(a)(4)(A)(iii). Hall argued initially that
he was entitled to a public-interest waiver. The district court
rejected the argument; it then ordered the parties to “file a joint
report indicating whether or not plaintiff has committed to
paying search and copying fees up to a specific amount. If he
has not, the case will be dismissed.” Mem. Op. (July 22, 2002)
7. The parties then continued to maneuver with respect to fees;
each here seeks to cast blame on the other, but we need not
recount those maneuvers here nor pick sides.
4
Meanwhile, Hall filed a third request to CIA in February
2003, incorporating his prior requests, adding a new group, and
adding an alternative theory to support reduced fees—namely,
his status as a representative of the media. In October 2003 Hall
filed a motion for leave to file an amended and supplemental
complaint that incorporated the February 2003 FOIA request
and the new fee waiver contention. In addition, Hall filed a
separate suit in district court, seeking to enforce the February
2003 request. Complaint for Injunctive Relief, Hall v. CIA, No.
04-0814 (D.D.C. filed May 19, 2004).
On November 13, 2003, the district court hearing the
original case (the present one) issued two memorandum
opinions. In the first it ruled that “[b]ecause plaintiff has
declined to pay the fees for search and copying done by
defendant by offering only $1,000, he has constructively
abandoned his request and is not entitled to receive any
additional documents.” Mem. Op. (Nov. 13, 2003) 4.
Accordingly the court dismissed the case. Id. at 6. The second
opinion denied Hall’s attempts to amend and supplement his
complaint. Mem. Op. & Order (Nov. 13, 2003) (“Nov. 2003
Mem. Op. II”). Two weeks later, Hall mailed two checks
totaling $10,906.33 to the CIA, but the CIA returned the checks
without cashing them. Br. for Appellant 34 n.8.
Hall then filed a motion for reconsideration of both orders,
purportedly under Rule 59(e) of the Federal Rules of Civil
Procedure, but not within that rule’s 10-day time limit. As the
motion raised grounds cognizable under Federal Rule of Civil
Procedure Rule 60(b), the district court properly addressed the
motion as one under that rule. See Computer Professionals for
Social Responsibility v. U.S. Secret Service, 72 F.3d 897, 903
(D.C. Cir. 1996) (“An untimely motion under Rule 59(e) may be
considered as a motion under Rule 60(b) if it states grounds for
relief under the latter rule.”). Rule 60(b), so far as relevant here,
5
imposes no time limits, but under Rule 4(a)(4)(A)(v) & (vi) of
the Federal Rules of Appellate Procedure, the filing of a Rule
60(b) motion doesn’t toll the time for filing an appeal when filed
more than 10 days after the judgment. The district court denied
the motion in April 2004. Mem. Op. (April 22, 2004) (“April
2004 Mem. Op.”). By this time, the deadline for filing a notice
of appeal had passed. Hall filed a timely notice of appeal from
the April 2004 order.
On the eve of oral argument the CIA informed the court that
it “has decided to use its administrative discretion to voluntarily
release the documents at issue in this case without payment from
appellant.” Appellee’s Suggestion of Mootness 2. Hall’s
counsel has since confirmed by letter that he received “a
package containing a release of documents responsive to
Freedom of Information Act requests made by [his] client, Mr.
Roger Hall, in 1994 and 1998.”
We first explain briefly why Hall may not directly appeal
the November 2003 orders. We then turn to Hall’s appeals from
the district court’s denial of his motion for reconsideration.
Because the fee waiver claims are moot due to the CIA’s release
of documents we vacate the district court orders insofar as they
adjudicate such issues; otherwise we affirm.
I. Direct Appeal
Hall suggests that because of “unique circumstances” the
time for filing a notice of appeal of the November 2003 orders
should be extended. But such a relaxation of the time limits is
permitted only under very narrow circumstances involving
reasonable reliance on a district court’s decisions—not its
silence—in response to motions labeled “Rule 59(e).” See
Webb v. Department of Health & Human Services, 696 F.2d
6
101, 104-06 (D.C. Cir. 1982); cf. Center for Nuclear
Responsibility, Inc. v. U.S. Nuclear Regulatory Commission, 781
F.2d 935, 942 (D.C. Cir. 1986) (rejecting idea that district
court’s merely taking a belated Rule 59(e) motion under
advisement extends the time limits). Hall appears to rest only on
the failure of both court and adversary to object to his
mislabeling of his Rule 59(e) motion. In our adversarial system,
it was not their duty to give him an alert.
II. Appeal from Denial of Motion for Reconsideration
As noted earlier, the district court properly construed Hall’s
motion for reconsideration as one made under Rule 60(b). Hall
appeals the district court’s rejection of four claims, and we
review them in turn for abuse of discretion. See, e.g., Twelve
John Does v. District of Columbia, 117 F.3d 571, 579 (D.C. Cir.
1997). The district court analyzed the first three claims under
Rule 60(b)(1), namely, arguments (1) that Hall’s complaint
should be dismissed, (2) that Hall was not entitled to a public-
interest fee waiver, and (3) that Hall should not be permitted to
amend or supplement his complaint. Rule 60(b)(1) provides:
“On motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a final
judgment, order, or proceeding for . . . mistake, inadvertence,
surprise, or excusable neglect . . . .” Relief under Rule 60(b)(1)
motions is rare; such motions allow district courts to correct
only limited types of substantive errors. See, e.g., D.C.
Federation of Civic Ass’ns v. Volpe, 520 F.2d 451 (D.C. Cir.
1975); see also Center for Nuclear Responsibility, Inc., 781 F.2d
at 940 (declining to extend the analysis in Volpe). The district
court analyzed Hall’s fourth claim under Rule 60(b)(5), and we
momentarily defer consideration of that issue.
Dismissal. In the motion practice leading up to the court’s
November 13, 2003 dismissal, Hall naturally offered arguments
7
against dismissal. His motion for reconsideration objected to the
dismissal, and the district court denied reconsideration under
Rule 60(b)(1). April 2004 Mem. Op. at 7. Hall’s briefs don’t
contest the reasons the district court offered for denying
reconsideration, so his appeal on this issue fails and we affirm
the district court’s dismissal of the case.
Denial of Public-Interest Waiver. We find that the CIA’s
decision to release documents to Hall without seeking payment
from him moots Hall’s arguments that the district court’s denial
of a fee waiver was substantively incorrect. The rule against
deciding moot cases forbids federal courts from rendering
advisory opinions or “decid[ing] questions that cannot affect the
rights of litigants in the case before them.” See, e.g.,
Pharmachemie B.V. v. Barr Laboratories, Inc., 276 F.3d 627
(D.C. Cir. 2002). Hall’s position is the same as that of the FOIA
requesters in a previous case who wanted to continue their
challenge to an agency’s initial denial of a fee waiver even after
the agency reversed its position and waived the fees at issue.
Like theirs, Hall’s case is moot because he already has “obtained
everything that [he] could recover . . . by a judgment of this
court in [his] favor.” Better Government Ass’n v. Department
of State, 780 F.2d 86, 91 (D.C. Cir. 1986) (internal citations
omitted, bracketed pronouns ours).
Hall fails to undermine the government’s mootness claim
with his argument that the media status claim is capable of
repetition, yet evading review. Assuming in Hall’s favor that
the matter is capable of repetition, we fail to see how the issue
has any tendency to evade review. Denials of fee waivers do not
seem inherently of such short duration that they cannot
ordinarily be fully litigated before their cessation. See United
States v. Weston, 194 F.3d 145, 148 (D.C. Cir. 1999).
8
There remains the question whether the district court
decisions relating to Hall’s fee-related claims should be vacated;
we believe they should. The normal principle is that “when
mootness results from unilateral action of the party who
prevailed below,” U.S. Bancorp Mortgage Co. v. Bonner Mall
Partnership, 513 U.S. 18, 25 (1994) (citations and footnote
omitted), the moot judgment should be vacated lest the losing
party, denied an opportunity to appeal by its adversary’s
conduct, should later be subject to the judgment’s preclusive
effect. See United States v. Munsingwear, Inc., 340 U.S. 36, 40
(1950). We have previously applied this principle in the FOIA
context. See Armstrong v. Executive Office of the President, 97
F.3d 575, 582 (D.C. Cir. 1996). Unlike in Armstrong, neither
party here has requested vacatur, but such a request is
unnecessary. See Columbian Rope Co. v. West, 142 F.3d 1313,
1318 & n.5 (D.C. Cir. 1998). Here, vacatur appears plainly
appropriate. As noted, Hall has already filed a second lawsuit
regarding his February 2003 FOIA request. The CIA has raised
defenses of issue and claim preclusion. See Br. for Appellant 33
n.8. Moreover, the scope of the CIA’s release of documents
without payment is unclear. Under these circumstances, the
CIA’s unilateral action here should not preclude Hall from
litigating fee waiver questions in that suit. We therefore vacate
each of the district court’s decisions to the extent that they relate
to the payment of fees. See Arizonans for Official English v.
Arizona, 520 U.S. 43, 75 (1997) (finding “vacatur down the
line” the equitable solution); see also Columbian Rope Co., 142
F.3d at 1318 n.5.
Amended and Supplemental Complaint. Hall’s proposed
new complaint differed from his original complaint in two ways:
He added a claim based on the set of FOIA requests initially
made in February 2003, and he formally sought fee waivers,
both as a representative of the news media and on public-interest
9
grounds. (The original complaint had not claimed a fee waiver,
but the parties litigated his public-interest theory without
objection. Cf. FED. R. CIV. P. 15(b).) Hall did not specify
whether these revisions were amendments or supplemental
pleadings. The addition of the new FOIA request is plainly a
supplemental pleading as defined by Federal Rule of Civil
Procedure 15(d), as it “sets forth transactions or occurrences or
events which have happened since the date of the pleading
sought to be supplemented.” See United States v. Hicks, 283
F.3d 380, 385 (D.C. Cir. 2002) (internal quotation marks
omitted). Such supplements always require leave of the court.
Id. Insofar as the fee waiver contentions apply to Hall’s first
two sets of FOIA requests they appear to be amendments, as
they “relate to matters that occurred prior to the filing of the
original pleading,” 6A CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 1504, at 184 (2d ed. 1990); insofar
as they apply to the third set, they appear to be a supplement.
Because Hall’s proposed amendments all pertain to the fee
question, they are moot. His proposed supplement, however, is
not. The district court rejected the supplement in the second of
its November 13, 2003, rulings and again in its denial of Hall’s
motion for reconsideration. Hall seeks to appeal both. For the
reasons already given, appeal of the original ruling is
unavailable.
In denying Hall’s motion for reconsideration, the district
court focused on two factors. First, it noted the absence of
factors that would warrant correction of substantive errors.
April 2004 Mem. Op. at 8. Second, the district court invoked its
analysis in initially denying Hall’s motion, id., where it had
concluded that allowing Hall to supplement his complaint would
both unduly delay resolution of the case and prejudice the
defendant. Nov. 2003 Mem. Op. II at 2-3 (citation omitted).
Delay and prejudice are precisely the matters to be addressed in
10
considering whether to grant motions for supplemental
pleadings; such motions are to be “freely granted when doing so
will promote the economic and speedy disposition of the entire
controversy between the parties, will not cause undue delay or
trial inconvenience, and will not prejudice the rights of any of
the other parties to the action.” WRIGHT ET AL., supra, § 1504,
at 186-87. In analyzing prejudice, the district court referred to
Hall’s ongoing refusal to pay fees, Nov. 2003 Mem. Op. II at 3,
a matter now moot, but it does not appear to have regarded that
conduct as pivotal. Moreover, the suit already filed as to the
February 2003 FOIA request protects Hall from prejudice as to
any claims arising out of that request, as the district court
foresaw. Thus we find no abuse of discretion in the court’s
denial of that aspect of Hall’s motion.
Vacatur Under Rule 60(b)(5). Hall also appeals the district
court’s rejection of his request to vacate its November 2003
dismissal of the case because he had, after the dismissal,
attempted to pay the fees that the CIA had sought. In making
this argument Hall relies on Rule 60(b)(5), which provides in
relevant part that “upon such terms as are just,” the court may
provide relief because “it is no longer equitable that the
judgment should have prospective application.” Hall argues that
his tendering of the entire balance of fees rendered it “no longer
equitable” that he be subject to the judgment of dismissal. The
only “prospective application” of the judgment that Hall appears
to invoke is its potential claim- or issue-preclusive effect. Br.
for Appellant 33. Insofar as the argument relates to the fees
dispute, of course, our order vacating the judgment as moot
removes any possibility of such an effect on those issues. In any
event, preclusive effects do not qualify as “prospective
application[s]” under Rule 60(b)(5), which is addressed to
“executory” decrees or ones involving “the supervision of
changing conditions or circumstances.” Twelve John Does v.
11
District of Columbia, 841 F.2d 1133, 1139-40 (D.C. Cir. 1988).
The district court’s rejection of Hall’s argument was correct.
* * *
The district court’s orders are vacated to the extent moot
and in all other respects affirmed.
So ordered.