In re Leopold
| Decision Date | 16 August 2018 |
| Docket Number | Misc. Action No. 13-mc-00712 |
| Citation | 327 F.Supp.3d 1 |
| Parties | In the MATTER OF the Application of Jason LEOPOLD to Unseal Certain Electronic Surveillance Applications and Orders. |
| Court | U.S. District Court — District of Columbia |
Jeffrey Louis Light, Law Offices of Jeffrey Light, KatieLynn Boyd Townsend, Reporters Committee for Freedom of the Press, Washington, DC, for Petitioner.
Leslie Ann Gerardo, Pamela Stever Satterfield, United States Attorney's Office, Margaret J. Chriss, U.S. Attorney's Office Special Proceedings Section, Washington, DC, for Respondent.
Jason Leopold and the Reporters Committee for Freedom of the Press filed petitions to unseal voluminous judicial records, dating back years, authorizing the government's use of certain statutory authorities to gather information for use in now-closed criminal investigations, which petitions were predicated on asserted rights of access under the First Amendment and the common law. See Leopold's Pet. Unseal Records ("Leopold's Pet."), ECF No. 1; Reporters Comm.'s Appl. to Unseal & for Other Appropriate Relief ("Reporters Comm.'s Appl."), ECF No. 18. On February 26, 2018, the Court recognized a prospective right of access under the common law to limited information concerning three categories of judicial records, routinely maintained under seal, relating to applications filed by the U.S. Attorney's Office for the District of Columbia ("USAO") for: (1) warrants issued pursuant to the Stored Communications Act ("SCA"), see 18 U.S.C. § 2703(a) ; (2) court orders issued pursuant to the SCA's § 2703(d) ; and (3) orders authorizing the installation and use of pen register and trap and trace ("PR/TT") devices pursuant to the Pen Register Act ("PRA"), see id. § 3123. See Order Granting in Part & Denying in Part Leopold's Pet. & Reporters Comm.'s Appl. ("Order"), ECF No. 53; Matter of Leopold to Unseal Certain Elec. Surveillance Applications & Orders ("Leopold "), 300 F.Supp.3d 61 (D.D.C. 2018). The Court declined to recognize a broader or retrospective right of access under the common law or to recognize any right of access under the First Amendment to these routinely sealed records. Leopold , 300 F.Supp.3d at 108.
The petitioners now seek reconsideration of the Court's Order and Memorandum Opinion. See Pet'rs' Mot. Reconsideration, ECF No. 55. Specifically, the petitioners ask the Court to (1) reconsider its conclusion that the First Amendment affords no right of access to the three categories of judicial records at issue, (2) reconsider its conclusion that the common law provides no broader right of access than that which the Court has recognized, and (3) more clearly specify the factual findings upon which the Court based its resolution of the petitioners' common law claim. Id. at 1. For the reasons explained below, the petitioners' motion for reconsideration is denied.
The Court's previous Memorandum Opinion laid out this matter's background in great detail, see Leopold , 300 F.Supp.3d at 68–79, so only a brief overview of the relevant facts is necessary. In July 2013, Leopold, a journalist currently employed by BuzzFeed News, filed a petition to unseal nearly twenty years of sealed government applications, pursuant to various statutory authorities, plus related affidavits and orders, regarding the government's collection of information during law enforcement investigations, "except for those which relate to an ongoing investigation." See Leopold's Pet. at 1. Leopold asserted that both the First Amendment and the common law established rights of access to these materials. Id. at 4, 12–18. Three years later, after the case was reassigned to the undersigned Judge, the Reporters Committee was permitted to intervene, see Reporters Comm.'s Unopposed Mot. Intervene, ECF No. 16, and filed its own petition to unseal, see Reporters Comm.'s Appl. Over the next year, the petitioners and the USAO, with guidance from this Court, engaged in discussions on how properly to vindicate, in light of substantial law enforcement investigative and individual privacy concerns, the public's interest in transparency of judicial records concerning the government's use of statutorily authorized investigative tools. See Leopold , 300 F.Supp.3d at 67–68.
Id. at 100. At all times, the petitioners' limited the scope of their requested relief to materials from closed investigations. This limit necessarily precludes real-time disclosure of any information or records, including docketed case numbers, for these criminal investigative matters, since the USAO only seeks, and the Court only grants, such orders in "ongoing criminal investigation[s]." 18 U.S.C. § 2703(d) ; id. § 3123(a)(1). Eventually, the parties could reach no further agreement, and requested that the Court resolve the petitioners' claims. Leopold , 300 F.Supp.3d at 79.
On February 26, 2018, the Court granted in part and denied in part the petitioners' petitions. See Order. The Court explained, in an accompanying Memorandum Opinion, that the petitioners' First Amendment right of access claim failed because the petitioners had failed to establish "the prerequisite [ ] showing [of] a longstanding tradition of public access ... as to the PR/TT and SCA materials at issue." Leopold , 300 F.Supp.3d at 85. Further, no retrospective right of access under the common law was recognized, in light of the considerable administrative burden that such extensive unsealing of nearly a decade's worth of surveillance materials would impose on the USAO and the Clerk's Office, due to the necessity of identifying, reviewing and redacting sensitive law enforcement and privacy-protected information from any unsealed records. Id. at 97–103. The Court held, however, that the common law afforded the petitioners a limited prospective right of access to certain information on the materials sought "in light of the changes recently adopted by the USAO and Clerk's Office in the processing of such materials." Id. at 85. Specifically, the Court held that the petitioners enjoyed a prospective common law right of access to information, to be disclosed periodically, "regarding the total number of PR/TT, § 2703(d), and SCA warrant applications filed by the USAO, the number and type of accounts that such applications target, the names of the providers to which these applications are directed, and the primary criminal offense under investigation for these applications." Id. at 108.
The petitioners have now filed a motion for reconsideration, see Pet'rs' Mot. Reconsideration, which is ripe for review.
Rule 59(e) of the Federal Rules of Civil Procedure allows a party to file "[a] motion to alter or amend a judgment." FED. R. CIV. P. 59(e). 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." Messina v. Krakower , 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996) ). As the D.C. Circuit recently stressed, "the reconsideration or amendment of a judgment is nonetheless an extraordinary measure." Leidos, Inc. v. Hellenic Republic , 881 F.3d 213, 217 (D.C. Cir. 2018). A Rule 59(e) motion "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," id. (quoting Exxon Shipping v. Baker , 554 U.S. 471, 486 n.5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) ), and "is ‘not a vehicle to present a new legal theory that was available prior to judgment,’ " id. (quoting Patton Boggs LLP v. Chevron Corp. , 683 F.3d 397, 403 (D.C. Cir. 2012) ). Thus, " Rule 59(e) is not available to a party who ‘could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.’ " Id. at 220 (quoting Ciralsky v. CIA , 355 F.3d 661, 665 (D.C. Cir. 2004) ).
Having identified no "intervening change of controlling law" or new and previously unavailable evidence, the petitioners are entitled to reconsideration only if the Court committed "clear error" or worked "manifest injustice." Messina , 439 F.3d at 758 (quoting Firestone , 76 F.3d at 1208 ). The petitioners contend that reconsideration is appropriate because the Court erred in concluding that (1) the First Amendment affords no right of access to judicial records relating to SCA warrants, § 2703(d) orders, and PR/TT orders, and (2) the common law affords the petitioners only a limited, prospective right of access to these records.1 Additionally, the petitioners ask the Court to (3) clarify the factual basis of its conclusion as to the common law right of access. As detailed below, the petitioners identify no error in the Court's analysis, much less error that is "clear" or gives rise to "manifest injustice." Id. The petitioners thus are not entitled to reconsideration.
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