COLLEEN KOLLAR-KOTELLY, District Judge.
Over seven years ago, Plaintiff Ralph Schoenman ("Schoenman"), a self-described political activist and author, brought this action against a handful of federal agencies, including the Central Intelligence Agency (the "CIA") and Federal Bureau of Investigation (the "FBI") (collectively, "Defendants"), seeking the disclosure of a broad array of records under the Freedom of Information Act ("FOIA") and the Privacy Act of 1974 ("PA"). On January 23, 2012, following years of motion practice and twelve detailed opinions from this Court, a final judgment was entered reflecting an adjudication of all the claims, rights, and liabilities of the parties.
Currently before the Court is Schoenman's [178] Motion for Reconsideration, filed on February 21, 2012, seeking reconsideration of certain aspects of this Court's prior decisions under Federal Rule of Civil Procedure 59(e).
Because this action has been pending for over seven years and has seen a considerable amount of motion practice in that time, setting forth the full breadth of the background of the case here is neither necessary nor desirable. Instead, the Court shall briefly outline the facts and procedural history most germane to the instant motion and assume familiarity with its many prior opinions, which are incorporated herein.
In July 2001, Schoenman's legal counsel submitted FOIA/PA requests to several federal agencies, including the CIA and the FBI, seeking the disclosure of a broad array of records relating to him, Lord Bertrand Russell, and six named organizations. The CIA and the FBI acknowledged receipt of Schoenman's requests and conducted searches of their records, ultimately producing some records and withholding others in full or in part. Dissatisfied with the response he received, Schoenman commenced this civil action on December 20, 2004, naming as defendants the CIA, the FBI, and other federal agencies.
In the years that followed, the issues in the case were successively winnowed down or refined by the parties' motion practice and the decisions of this Court. Most notably for present purposes, in an opinion dated March 31, 2009, the Court granted the FBI summary judgment on the reasonableness of its search for responsive records because Schoenman "conceded the issue" by failing to respond to the FBI's arguments in any of his submissions. See Schoenman v. FBI, 604 F.Supp.2d 174, 204 (D.D.C.2009). Subsequently, in an opinion dated February 9, 2011, the Court faulted Schoenman for attempting to "resurrect and relitigate" the reasonableness of the FBI's search in part because "Schoenman, who is represented by counsel in this action, ha[d] never filed a formal motion for relief from this Court's prior order granting the FBI summary judgment on the issue of the reasonableness of its search." Schoenman v. FBI, 763 F.Supp.2d 173, 202 (D.D.C.2011). In its February 9, 2011 decision, the Court also granted summary judgment to the FBI on the question of whether the agency had properly withheld confidential source symbol numbers and confidential source file numbers under FOIA Exemptions 2 and 7(D). See id. at 196, 200.
Thereafter, the parties briefed the sole remaining issue in the action — namely, the disposition of certain CIA-originating records referred to the CIA by the FBI for processing and a direct response to Schoenman. On January 23, 2012, the Court granted summary judgment in the CIA's favor and, because no other viable claims for disclosure remained extant, entered a final judgment reflecting an adjudication of all the claims, rights, and liabilities of the parties. See Order & Final Judgment, ECF No. [175]. As part of its January 23, 2012 decision, the Court denied Schoenman's two motions to late file a reply memorandum of points and authorities,
Federal Rule of Civil Procedure 59(e) permits a party to file "[a] motion to alter or amend a judgment" within "28 days after the entry of the judgment."
Through his Motion for Reconsideration, Schoenman contends that the Court should reconsider: (1) its January 23, 2012 decision insofar as it denied his two motions to late file various documents in connection with the parties' cross-motions for summary judgment; (2) its February 9, 2011 decision insofar as the Court determined that the FBI properly invoked FOIA Exemption 2 as a basis for withholding certain information; and (3) its February 9, 2011 decision insofar as it rejected Schoenman's attempts to relitigate the reasonableness of the FBI's search for responsive records. The Court addresses each component of Schoenman's Motion for Reconsideration in turn.
Schoenman first contends that the Court should reconsider its January 23, 2012 decision denying his two motions to late file a reply memorandum of points and authorities, a declaration, and a statement of material facts in connection with the parties' cross-motions for summary judgment. For at least three reasons, the Court concludes that Schoenman has failed to meet his burden of justifying relief under Rule 59(e).
First, to justify relief from a final judgment, "the movant must give the district court `reason to believe that vacating the judgment will not be an empty exercise or futile gesture.'" Norman v. United States, 467 F.3d 773, 775 (D.C.Cir.2006) (quoting Murray v. District of Columbia, 52 F.3d 353, 355 (D.C.Cir.1995)). Here, although Schoenman seeks reconsideration of the Court's January 23, 2012 decision
Second, although Schoenman claims that the Court should reconsider its decision to deny his two motions to late file because he purportedly satisfied the standard for "good cause" and "excusable neglect," he does not mention, let alone supply a basis for questioning, the alternative grounds for the Court's decision. With respect to Schoenman's first motion to late file, the Court found that "even if they were timely filed," the underlying submissions would not affect the Court's decision on the merits because (1) many of his arguments were "raised for the first time in reply and would be disregarded on that basis" and (2) as aforementioned, the arguments were "speculative, unsupported, and contradicted by all the competent evidence in the record." Schoenman, 841 F.Supp.2d at 75 n. 3 (citing Baloch v. Norton, 517 F.Supp.2d 345, 348 (D.D.C.2007), aff'd, 550 F.3d 1191 (D.C.Cir.2008)). With respect to Schoenman's second motion to late file, the Court found that Schoenman (1) "failed to comply with the meet-and-confer requirements of Local Civil Rule 7(m) before filing his motion" and (2) failed to present a copy of his proposed submission with his motion, "rendering it impossible for the Court to determine whether it is even worthwhile to permit leave to late file." Id. at 76 n. 4 (citing Ellipso, Inc. v. Mann, 460 F.Supp.2d 99, 102 (D.D.C.2006); LCvR 5.4(c)). Having failed to proffer a basis for reconsidering these independent and adequate grounds for the Court's decision, the Court can only conclude that Schoenman has failed to meet his burden of justifying relief under Rule 59(e).
Third, the Court is wholly unpersuaded by Schoenman's argument that the Court somehow erred in denying his two motions to late file because he purportedly satisfied the standards for "good cause" and "excusable neglect." As an initial matter, Schoenman concedes that his Motion for Reconsideration offers explanations for his failure to timely file that were not previously presented to the Court. See Pl.'s Mem. at 11; Pl.'s Reply at 3. The Court declines to consider these new explanations because Rule 59(e) cannot and should not be used to raise new arguments or present new evidence. See Exxon
With respect to Schoenman's first motion to late file, Schoenman filed his motion four days after his deadline to act had already expired, meaning that he was required to show "good cause" under Rules 6(b)(1) and 16(b)(4) and "excusable neglect" under Rule 6(b)(1). See Schoenman, 841 F.Supp.2d at 73. The Court set an "exceedingly generous schedule" for briefing the parties' cross-motions for summary judgment, far in excess of the default framework supplied by the Local Rules of this Court, even though the parties were already "intimately familiar with the contours of this case." Id. at 74. "Despite the generosity of the schedule, Schoenman, citing developments in other cases handled by his counsel, previously moved this Court for a further two-week enlargement." Id. (internal quotation marks and notations omitted). The Court expressly granted that motion "very reluctantly," "underscored that it was an extension of an already exceedingly generous briefing schedule," and "warned Schoenman, in no uncertain terms, that NO FURTHER EXTENSIONS would be granted to either party absent extraordinary circumstances." Id. (internal quotation marks and notations omitted). Nonetheless, Schoenman "did not file his reply papers, seek an extension of time, or take any other proactive steps before the ... deadline expired." Id.
Even crediting the various excuses cited by Schoenman, the Court found that a reasonably diligent attorney could have and would have filed his reply papers within the twenty-one days allotted — multiples more than the norm. Id. Finding that "`Schoenman's `actions in this case do not bespeak diligence or any sense of urgency at all,'" the Court found that Schoenman failed to make the threshold showing of "good cause" under Rules 6(b)(1) and 16(b)(4). Id. (quoting Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 226 (D.C.Cir.2011)). In addition, the Court found that Schoenman's own account revealed that he "subjectively believed as early as the day before the expiration of the Court-ordered deadline that he would be unable to meet the deadline," but that he "still waited another five days... to petition the Court for a further extension." Id. The Court found that this sequence of events evinced something approaching "willful disregard of the Court's process," especially where Schoenman was "on actual notice that the Court expected him to adhere to the specified schedule and was strongly disinclined to grant further extensions absent extraordinary circumstances," and was therefore inconsistent with a finding of "excusable neglect" under Rule 6(b)(1). Id. at 75-76.
With respect to Schoenman's second motion to late file, Schoenman filed his motion an extraordinary one month and eleven days after his deadline to act had already expired, after he already "had an exceedingly generous one month and four days to prepare" his submission. Schoenman, 841 F.Supp.2d at 76. The only excuse Schoenman offered for his failure was his contention that he encountered "technical problems" with a "malfunctioning scanner," but the Court did not err in finding that excuse "patently insufficient" to satisfy the "good cause" standard under Rule 6(b)(1) when considered in the "context of the schedule as a whole." Id. Nor did the Court err in finding that Schoenman failed to satisfy the "excusable neglect" standard under Rule 6(b)(1) given that: (1) Schoenman's failure to file a timely submission "was a matter entirely within his control"; (2) the parties had already by that time submitted most of their briefing in connection with their cross-motions for summary judgment, meaning that granting leave to late file "would unfairly require the CIA to draft its opposition anew and delay the resolution of this action"; and (3) Schoenman
For the reasons set forth above, the Court finds that Schoenman has failed to meet his burden of showing that he is entitled to relief under Rule 59(e) with respect to the Court's January 23, 2012 decision denying his two motions to late file. Accordingly, insofar as Schoenman seeks reconsideration on this basis, his Motion for Reconsideration shall be DENIED.
Schoenman next contends that the Court should reconsider its February 9, 2011 decision granting summary judgment to the FBI because, in his view, the FBI's withholdings under FOIA Exemption 2 are no longer valid in light of the United States Supreme Court's March 7, 2011 decision in Milner v. Department of Navy, ___ U.S. ___, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011).
Exemption 2 permits an agency to withhold information "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). In its February 9, 2011 decision, the Court upheld the FBI's reliance "upon Exemption 2 to justify the non-disclosure of confidential source symbol numbers and confidential source file numbers." Schoenman, 763 F.Supp.2d at 196. In so doing, the Court applied the law of this Circuit at the time, under which an agency could withhold information used for predominantly internal purposes under Exemption 2 if the information related to trivial administrative matters or its disclosure would risk circumvention of legal requirements. See, e.g., Schiller v. Nat'l Labor Relations Bd., 964 F.2d 1205, 1207 (D.C.Cir.1992), abrogated by Milner v. Dep't of Navy, ___ U.S. ___, 131 S.Ct. 1259, 1271, 179 L.Ed.2d 268 (2011). Less than a month after the Court issued its February 9, 2011 decision, the Supreme Court decided Milner, in which it held that Exemption 2 is limited to "records relating to issues of employee relations and human resources." 131 S.Ct. at 1271. Insofar as Schoenman contends that the Milner decision narrowed the scope of Exemption 2 in this Circuit and calls into question the FBI's reliance on the exemption as a basis for withholding confidential source symbol numbers and confidential source file numbers, the Court agrees. Nonetheless, for at least two reasons, the Court concludes that Schoenman cannot rely upon Milner to justify relief under Rule 59(e).
First, Milner was decided on March 7, 2011, and yet Schoenman offers no explanation for why he waited an extraordinary eleven months and two weeks, and until after the Court entered a final judgment, before he sought reconsideration on this basis. A party acting with reasonable diligence could and would have sought reconsideration of the Court's February 9, 2011 decision while it was still interlocutory under Federal Rule of Civil Procedure 54(b).
Second, when the Court upheld the FBI's non-disclosure of confidential source symbol numbers and confidential source file numbers in its February 9, 2011 decision, it did not rely on Exemption 2 alone. Rather, the Court also expressly found that the FBI had properly invoked Exemption 7(D), which "allows agencies to withhold information in law enforcement records where the public disclosure of such information `could reasonably be expected to disclose the identity of a confidential source.'" Schoenman, 763 F.Supp.2d at 200 (quoting 5 U.S.C. § 552(b)(7)(D)). In his Motion for Reconsideration, Schoenman now posits that the mere "fact that Exemption 2 was cited in tandem with Exemption 7(D) raises a question as to whether the FBI made a careful, independent evaluation of the Exemption 7(D) claim." Pl.'s Mem. at 18. An argument of this kind — speculative, unsupported, and contradicted by all the competent evidence in the record — is insufficient to warrant relief under Rule 59(e).
The Court finds that Schoenman has failed to meet his burden of showing an entitlement to relief under Rule 59(e) based on the Supreme Court's decision in Milner. Accordingly, insofar as Schoenman seeks reconsideration on this basis, his Motion for Reconsideration shall be DENIED.
Lastly, Schoenman contends that the Court should reconsider its February 9, 2011 decision granting summary judgment to the FBI because "new information," in his view, "raise[s] a question as to whether the FBI's search was adequate in this case." Pl.'s Mem. at 22. For at least three reasons, the Court declines to exercise its discretion to grant relief under Rule 59(e) on this basis.
First, Schoenman has not sought reconsideration of this Court's March 31, 2009 decision,
Second, Schoenman has failed to "exercise due diligence" in pursuing this issue. Fox, 389 F.3d at 1296. After the Court granted the FBI summary judgment on the reasonableness of its search for records on March 31, 2009, two years, ten months, and three weeks passed before Schoenman filed the instant motion. Such an extraordinary delay is particularly egregious in this case because, in its February 9, 2011 decision, the Court specifically faulted Schoenman for attempting to "resurrect" the reasonableness of the FBI's search for records in part because "Schoenman, who is represented by counsel in this action, ha[d] never filed a formal motion for relief from this Court's prior order granting the FBI summary judgment on the issue of the reasonableness of its search."
Third, the "new information" cited by Schoenman consists of two things — a recent news article and a recent opinion from Judge Amy Berman Jackson in an unrelated case.
The Court finds that Schoenman has failed to meet his burden of showing an entitlement to relief under Rule 59(e) based on "new information" purportedly bearing on the adequacy of the FBI's search for records. Accordingly, insofar as Schoenman seeks reconsideration on this basis, his Motion for Reconsideration shall be DENIED.
For the reasons set forth above, Schoenman's [178] Motion for Reconsideration shall be DENIED. An appropriate Order accompanies this Memorandum Opinion.