UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
JAMES LUTCHER NEGLEY, )
)
Plaintiff, )
)
v. ) Civil Action No. 03-2126 (GK)
)
)
FEDERAL BUREAU )
OF INVESTIGATION, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff James Luther Negley (“Plaintiff”), brings this
action against Defendant, Federal Bureau of Investigation (“FBI” or
“Defendant”), under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. This matter is before the Court on Plaintiff’s Motion
for Reconsideration [Dkt. No. 111]. Upon consideration of the
Motion, Opposition, Reply, and the entire record herein, and for
the reasons stated below, Plaintiff’s Motion for Reconsideration is
denied.
I. BACKGROUND1
This case concerns a FOIA dispute between Negley and the FBI
which has been ongoing for over nine years. On January 16, 2002,
1
The facts set forth herein are a summary of facts directly
relevant to Plaintiff’s Motion for Reconsideration drawn, unless
otherwise noted, from the facts set out in this Court’s March 1,
2011, Memorandum Opinion. See Negley v. F.B.I., 766 F. Supp. 2d 190
(D.D.C. 2011). This Court’s September 24, 2009, Memorandum Opinion
contains a more fulsome recitation of the case’s lengthy factual
background. See Negley v. F.B.I., 658 F. Supp. 2d 50, 53-55 (D.D.C.
2009).
Plaintiff submitted a FOIA request (“2002 FOIA request”) to the
FBI’s San Francisco Field Office (“SFFO”) seeking “a copy of any
records about [him] maintained at and by the FBI in [the San
Francisco] field office.” On August 24, 2007, after several years
of litigation regarding the specifics of the FBI’s FOIA
responsibilities, Plaintiff filed a Motion for Partial Summary
Judgment [Dkt. No. 71], arguing that Defendant’s search and
production of documents were inadequate as a matter of law, and
failed to comply with his FOIA request. On the same day, Defendant
filed a Second Motion for Summary Judgment on all claims raised by
Plaintiff [Dkt. No. 72].
On June 15, 2009, unbeknownst to the Court, Plaintiff
submitted a separate, expansive FOIA request (“2009 FOIA request”)
to Defendant, seeking “all records in the possession of the Federal
Bureau of Investigation relating, in any way, to James Lutcher
Negley.” Eighth Hardy Decl. ¶ 10, Apr. 22, 2010 [Dkt. No. 103-3].
Neither party informed the Court of Plaintiff’s June 2009 request.
On September 24, 2009, this Court granted Plaintiff’s Motion
for Partial Summary Judgment and denied Defendant’s Second Motion
for Summary Judgment, finding that Defendant’s search for
responsive documents was inadequate, and that Defendant’s
production of documents was insufficient. Negley v. FBI, 658 F.
Supp. 2d 50, 56-61 (D.D.C. 2009). The Court entered a very detailed
Order, requiring Defendant to conduct certain searches, produce
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material to Plaintiff, and make its affiants available for
deposition, all to satisfy Plaintiff’s 2002 FOIA request. Order 1-
4, Sept. 24, 2009 (the “September 24, 2009, Order”) [Dkt. No. 90].
Over the following several months, Defendant took steps to comply
with the September 24, 2009, Order.
On April 5, 2010, Plaintiff filed a Motion for Contempt for
Defendant’s Failure to Comply with the Court’s September 24, 2009,
Order (“Pl.’s Mot. for Contempt”) [Dkt. No. 102]. On March 1, 2011,
this Court denied Plaintiff’s motion, finding that the FBI searched
for and produced all documents responsive to Plaintiff’s 2002 FOIA
request and required by the Court’s “reasonably clear and
unambiguous” September 24, 2009, Order. Negley v. F.B.I., 766 F.
Supp. 2d 190, 196 (D.D.C. 2011) (hereinafter “March 1, 2011,
Opinion” or “Opinion”).
Subsequently, on March 9, 2011, Plaintiff filed the pending
Motion for Reconsideration (“Pl.’s Mot.”) of the March 1, 2011,
Order denying Plaintiff’s motion for contempt. On March 25, 2011,
Defendant filed its Opposition (“Def.’s Opp’n”) [Dkt. No. 113]. On
April 1, 2011, Plaintiff filed his Reply [Dkt. No. 114].
II. STANDARD OF REVIEW
A district court may revise its own interlocutory decisions
“at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.” Fed. R. Civ.
P. 54(b). A motion for reconsideration of a contempt motion against
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a party to the dispute is properly considered under Rule 54(b). See
S.E.C. v. Bilzerian, 729 F. Supp. 2d 9, 12-13 (D.D.C. 2010)
(“[C]ourts usually analyze motions for reconsideration of civil
contempt orders under Rule 54(b) . . . .”).
Rule 54(b) permits the district court to reconsider an
interlocutory order “as justice requires.” Singh v. George
Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (citing
Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)). The term
“‘[a]s justice requires’ indicates concrete considerations” by the
court, Williams v. Savage, 569 F. Supp. 2d 99, 108 (D.D.C. 2008),
such as “whether the court patently misunderstood the parties, made
a decision beyond the adversarial issues presented, made an error
in failing to consider controlling decisions or data, or whether a
controlling or significant change in the law has occurred.” In Def.
of Animals v. Nat’l Inst. of Health, 543 F. Supp. 2d 70, 75 (D.D.C.
2008) (internal citation and quotation marks omitted).
“Furthermore, the party moving to reconsider carries the
burden of proving that some harm would accompany a denial of the
motion to reconsider.” Id. at 76. The court’s discretion under
54(b) is “subject to the caveat that, where litigants have once
battled for the court’s decision, they should neither be required,
nor without good reason permitted, to battle for it again.” Singh,
383 F. Supp. 2d at 101 (internal citations omitted).
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III. ANALYSIS
Plaintiff urges the Court to reconsider its March 1, 2011,
Opinion denying his motion for contempt. Plaintiff does not rely on
any newly discovered evidence or changes in the law to support his
Motion. Instead, Plaintiff argues that the Court (1)
“mischaracterizes Negley’s 2002 FOIA request as seeking documents
only maintained at and by the San Francisco Field Office,” and (2)
“misunderstand[s]” the effect of Negley’s 2009 FOIA request. Pl.’s
Mot. 1-2, 4. In essence, Plaintiff seeks to have this Court
reconsider the geographic scope of his 2002 FOIA request and the
reasonableness of Defendant’s use of an April 2002 cut-off date for
production of documents responsive to that request. Plaintiff’s
arguments are considered in turn.
A. Plaintiff’s Motion for Reconsideration of the Geographic
Scope of Plaintiff’s 2002 FOIA Request Is Denied.
Plaintiff’s 2002 FOIA request sought “any records about [him]
maintained at and by the FBI in [the San Francisco] field office.”
Negley, 766 F. Supp. 2d at 191. Plaintiff included the language
specifying the relevant field office because he was informed that
FBI protocol requires that FOIA requests be directed to specific
offices. Pl.’s Mot. 1. As the Court has previously noted, because
it was not aware of Plaintiff’s 2009 FOIA request at the time of
its September 24, 2009, Order, that Order “referred only to the
request that Negley made in 2002.” Negley, 766 F. Supp. 2d at 194
(emphasis in original). Plaintiff now asserts that the scope of
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this request was expanded to include records outside of the SFFO,
and that Defendant “violate[d] the September 24, 2009 Order by
producing documents only maintained at and by the SFFO.” Pl.’s Mot.
1-2.
Plaintiff states that he sent an amendment to his original
2002 FOIA request to the SFFO on April 23, 2002, id. at 2, which
stated in part: “Please amend my 1/16/2002 FOIA request to your
office to include . . . file no. [S-1575] as well as any others.”
Id., Ex. A. Plaintiff argues that “unlike the initial [2002 FOIA
request] to the SFFO, [Plaintiff’s amended request] does not
contain any geographic limitation.” Id. at 2.
The plain and logical reading of the amended request is that
“any others” refers to other file numbers at the SFFO office.2 This
is especially apparent in light of Plaintiff’s understanding that
“FBI protocol required that he make a FOIA request directly to a
field office” to request any records from that office.3 See id. at
2
Plaintiff has previously stated that his only intention for
amending his 2002 request was to supplement his request for files
at the SFFO with a specific request for File S-1575. Under oath,
Plaintiff declared, “To the extent that there is any ambiguity in
the language of my April 23, 2002 correspondence to the FBI, it was
and still is my intent to amend my FOIA request to include, in
addition to all files about me at the SFFO, the entire File No. S-
1575, regardless of whether or not that file is about me.” Supp.
Negley Decl. ¶ 3, Feb. 8, 2007 [Dkt. No. 71-3].
3
Indeed, Plaintiff further manifested this understanding by
contacting other field offices directly when he sought files
maintained at and by those offices. See Negley, 658 F. Supp. 2d at
53 (request sent to Sacramento); Negley, 766 F. Supp. 2d at 193 n.6
(continued...)
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2 & n.1 (citing Maydak v. Dep’t of Justice, 254 F. Supp. 2d 23, 44
(D.D.C. 2003) (“For records held by a field office of the
[FBI] ..., however, you must write directly to that ... field
office address.”) (citation omitted)).
In sum, this Court has already considered and determined the
scope of Plaintiff’s 2002 FOIA request, and nothing in Plaintiff’s
motion or reply changes the Court’s prior analysis. See Negley, 766
F. Supp. 2d at 194-95.
B. Plaintiff’s Motion for Reconsideration of the
Reasonableness of Defendant’s Cut-off Date for Responsive
Documents Is Denied.
Next, Plaintiff asserts that the Court erred when it “held
that ‘it was reasonable for the FBI to use a cut-off date [for
production of responsive documents] of April 2002.’” See Pl.'s Mot.
4 (quoting Negley, 766 F. Supp. 2d at 196). As is well established,
a motion for reconsideration is not an opportunity to reargue facts
and theories upon which the court has already ruled, or present
theories or arguments that could have been advanced earlier. Estate
of Gaither ex rel. Gaither v. District of Columbia, 771 F. Supp. 2d
5, 10 & n.4 (D.D.C. 2011).4
3
(...continued)
(requests sent to Miami, Los Angeles, and San Antonio). Defendant,
meanwhile, was aware of Plaintiff’s requests to other offices. See,
e.g., Seventh Hard Decl. ¶ 39(b).
4
Plaintiff cites to one additional case in support of his
claim that Defendant’s use of a cut-off date earlier than the
issuance of the Court’s September 24, 2009, Order is “virtually per
(continued...)
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This Court has already considered and determined the
reasonableness of Defendant’s choice of cut-off dates. See Negley,
766 F. Supp. 2d at 194-96. The Court held that, under the
circumstances of this case, “it was reasonable for the FBI to use
a cut-off date of April 2002, when it was aware that it would also
have to respond to Plaintiff's broader 2009 FOIA request.” Id. at
196; see also Public Citizen v. Dep’t of State, 276 F.3d 634, 644
(D.C. Cir. 2002) (“nothing in this opinion precludes . . . [a]
federal agency from attempting a more compelling justification for
imposing a date-of-request cut-off on a particular FOIA request.”);
McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1103 (D.C.
Cir. 1983) (courts must “turn to the particular facts of the
case . . . to assess the reasonableness of the agency’s conduct.”);
Jefferson v. Bureau of Prisons, 578 F. Supp. 2d 55, 60 (D.D.C.
2008) (“the proper question here is whether the cut-off date used
was reasonable in light of the specific request Plaintiff made.”).
4
(...continued)
se unreasonable.” See Pl.’s Mot. 5-6. However, Plaintiff’s reliance
on Wilderness Society v. U.S. Bureau of Land Management, No. Civ.
A. 01CV2210, 2003 WL 255971 (D.D.C. Feb. 4, 2003) is unavailing.
There, the district court stated that “the agency would have a
heavy, if not impossible, burden to justify conducting its renewed
search subject to a time limitation based upon the date of
plaintiff’s initial request.” See Wilderness Soc’y, 2003 WL 255971,
at *7 n.18. However Defendant correctly notes that in this case,
unlike in Wilderness Society, the Plaintiff submitted a subsequent
2009 FOIA request for a broader set of documents. See Def.’s Opp’n
7. Moreover, after issuance of the Court’s September 24, 2009,
Order, Defendant responded by conducting searches designed to
locate records responsive to both the 2002 and 2009 FOIA requests.
Id. at 6.
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The Court notes that under other circumstances Defendant’s
decision to impose a cut-off date so far in the past might well
have been deemed improper. Here, however, Defendant reasonably
imposed its 2002 cut-off because it was also preparing to produce
documents responsive to a much broader FOIA request, which entirely
encompassed any post-April 2002 SFFO documents responsive to the
2002 request. Negley, 766 F. Supp. 2d at 196. Plaintiff has offered
no new evidence, law, or argument to reverse the Court’s prior
analysis.
Furthermore, Plaintiff has not suffered an injustice from the
use of the 2002 cut-off date. See Cobell v. Norton, 355 F. Supp. 2d
531, 540 (D.D.C. 2005) (“In order for justice to require
reconsideration, logically, it must be the case that, some sort of
‘injustice’ will result if reconsideration is refused.”). As
Defendant has pointed out, its renewed search for documents
responsive to both Plaintiff’s 2002 and 2009 FOIA requests found
that all documents responsive to the 2002 FOIA request, even apart
from the April 2002 cut-off date, had already been released. See
Eighth Hardy Decl. ¶ 14. Plaintiff never addresses this fact.
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IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for
Reconsideration is denied.
/s/
August 31, 2011 Gladys Kessler
U.S. District Court Judge
Copies to: Attorneys of record via ECF.
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