Lardner v. Fed. Bureau of Investigation

• Decision Date: 13 July 2012
• Docket Number: Civil Action No. 03-0874 (RCL)
• Parties: GEORGE LARDNER, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

GEORGE LARDNER, Plaintiff,

v.FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

Civil Action No. 03-0874 (RCL)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Dated: July 13, 2012

MEMORANDUM OPINION

I. INTRODUCTION

Pending before the Court is plaintiff George Lardner's ("Lardner") Motion For Partial Reconsideration of this Court's April 4, 2012, Judgment and Memorandum Opinion [99]. Lardner's quest for responsive documents began in 1993, when he filed his first Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552 et seq., request. Notwithstanding the fact that many years passed before Lardner received a response from the government, Lardner persevered in his battle for responsive records. The Court granted in part and denied in part the defendants' Motion for Summary Judgment on April 4, 2012, determining that the defendants adequately searched for responsive records. After receiving notice of the Court's decision, plaintiff now requests that the Court partially reconsider its judgment. Specifically, plaintiff asks this Court to re-evaluate its decision because he believes that the Court committed a "clear error" in its Memorandum Opinion. Upon consideration of the Motion, the Opposition, the Reply thereto, the applicable law, and the entire record herein, the Court denies the plaintiff's Motion for the reasons set forth below.

II. BACKGROUND¹

Lardner is a Pulitzer Prize winning journalist who filed FOIA requests on September 14, 1993 and January 21, 2003. Supp. Hardy Decl. [50-2] ¶ 24. Lardner seeks access to an array of records pertaining to Aniello Dellacroce ("Dellacroce"), the Underboss of the Gambino Crime Family who died in 1985; Sam "Moomoo" Giancana ("Giancana"), the deceased underboss of the Chicago Crime Family; and all records concerning the FBI's Top Hoodlum Program ("THP"). Vaughn Index, Hardy Second Supp. Decl. 9-10; Pl.'s Reply [108] at 1. Shortly after filing his second FOIA request, Lardner filed suit in the United States District Court for the District of Columbia, requesting the release of all records from the Federal Bureau of Investigation ("FBI"), Drug Enforcement Agency ("DEA") and five other Jon Doe Federal Agencies pertaining to his FOIA requests. Mem. Op. [99] at 3. Before the Court ruled on the cross-motions for summary judgment, the FBI agreed to the following: (1) to process approximately 34,000 pages of investigative records concerning the THP prior to and after 1960; (2) to provide Lardner with a Status Report; and (3) to search the Electronic Surveillance Indices ("ELSUR") in nineteen field offices.² Id. In addition, the FBI filed a Vaughn Index on August 27, 2010, created from 150 sample documents that the plaintiff aided in choosing.³ Id. at 4.

After a thorough review of the motions before the Court and the plethora of evidence that both parties submitted in support of their respective positions, this Court granted in part the defendants' motion for summary judgment. Mem. Op. at 1. The Court ruled in favor of thedefendants with respect to the reasonableness of the FBI's search for responsive records. Id. This Court, however, ruled in favor of the plaintiff with regard to this request ordering the defendants to reprocess all responsive records. Id. Within twenty-eight days of the Court's ruling, plaintiff presented the Court with this Motion for Partial Reconsideration, asking the Court to reconsider its opinion regarding the adequacy of the defendants' search. Pl.'s Mot. [102] Partial Recons. at 2. Plaintiff argues that the Court committed a "clear error" when it determined that the FBI's search was adequate, particularly with regard to Giancana and Dellacroce. Id. Plaintiff makes the following arguments in support of his motion for reconsideration with regard to Giancana: that (1) the FBI failed to search for or locate additional responsive records and that (2) the FBI conducted inadequate searches of the Automated Databases ("ADB") and the Inactive Indices. Pl.'s Mot. at 1-9. With regard to Dellacroce, plaintiff makes the following arguments in support of his motion for reconsideration: that (1) the FBI failed to search the Confidential Source Indices for documents; (2) the FBI is invoking the "Glomar defense"⁴ without acknowledging that it is doing so regarding "new evidence" that Dellacroce was an FBI informant; (3) the FBI failed to search for and produce copies of audio/videotapes and photographic records requested by the plaintiff; (4) the FBI failed to search for and disclose entire sections of FBI files; and (5) the FBI failed to search other field offices, notwithstanding the fact that the plaintiff failed to submit a FOIA request to each individual office. Id. at 10-17. Finally, plaintiff disputes the Court's determination that summary judgment was appropriate, arguing that there are disputed issues of material fact, thus making summary judgment inappropriate. Instead, plaintiff asks the Court to allow discovery on the disputedsearch issue pursuant to Rule 56(f). Id. at 17-18. For the reasons explained below, this Court denies the plaintiff's motion.

III. LEGAL STANDARD

Plaintiff seeks reconsideration of the Court's Memorandum Opinion and Order pursuant to Rules 52(b) and 59(b).⁵ While these rules are certainly applicable to the current motion, these rules fail to establish the standard that a Court must use in assessing such motions. Instead, this Court will look to Rule 59(e), which permits a party to file a motion to alter or amend a judgment, for guidance in evaluating a plaintiff's motion for reconsideration. Fed. R. Civ. P. 59(e). Rule 59(e) motions are "disfavored" and are reserved for "extraordinary circumstances." Liberty Prop. Trust v. Republic Props. Corp., 570 F. Supp. 2d 95, 97 (D.D.C. 2008) (quoting Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001)). "Extraordinary circumstance[s]" include (1) an intervening change of controlling law, (2) the availability of new evidence, or (3) the need to correct a clear error or prevent manifest injustice. Anyanwutaku v. Moore, 151 F.3d 1053, 1057-58 (D.C. Cir. 1998). Re-litigating arguments or legal theories that could have been raised earlier do not qualify as an "extraordinary circumstance" under Rule 59(e). See Taylor v. DOJ, 268 F. Supp. 2d 34, 35 (D.D.C. 2003). "New evidence" under Rule 59(e) applies to evidence that "was not previously available," as opposed to newly asserted facts. See Messina v. Fontana, 439 F. 3d 755, 759 (D.C. Cir. 2006). Additionally, Rule 59(e) motions are not vehicles that disgruntled plaintiffs may use to litigate novel claims or assert innovative legal theories for the first time. See Lurie v. Mid-Atlantic Permanente Medical Group, P.C., 787 F. Supp. 2d 54, 63 (D.D.C. 2011). With regard to "clear error," Courts have not generallydefined what constitutes "clear error" under Rule 59(e). Lightfoot v. Dist. of Columbia, 355 F. Supp. 2d 414, 422 (D.D.C. 2005). What can be learned from the scarce case law on the subject, however, is that clear error should conform to a "very exacting standard." Id. (quoting Hopwood v. Texas, 236 F.3d 256, 272 (5th Cir. 2000)). District Courts should have "a clear conviction of error" before finding a final judgment was predicated on clear error. Id. The Seventh Circuit declared that a final judgment must be "dead wrong" to constitute clear error. Parts & Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988).

IV. ANALYSIS

A. Sam Giancana Records

Plaintiff argues that the FBI failed to adequately search for records regarding Giancana. Specifically, plaintiff rebuts the Court's determination that the FBI (1) searched for or located additional responsive records and (2) that the FBI conducted adequate searches of the ADB and the Inactive Indices. Plaintiff offers the following arguments in support of his argument that the FBI failed to search for or locate additional responsive records. Prior to the Court's issuance of its Memorandum Opinion, plaintiff informed the Court that the National Archives and Records Administration ("NARA") contacted him, explaining "that it had 21 boxes of records on Giancana in its President John F. Kennedy Assassination Records Collection." Pl.'s Mot. Recons. at 3. Plaintiff argues that his inference—that "the FBI may very well also have retained copies of the 21 boxes of Giancana records transferred to NARA" —indicates that the FBI did not do an adequate search. Id. at 4. The basis for plaintiff's inference rests on a statement in David Hardy's ("Hardy") declaration. Id. Although the Court dismissed plaintiff's inferences in its Memorandum Opinion as merely speculative and lacking evidentiary support, plaintiffpersists in believing that a justifiable inference follows from NARA's allegation. Mem. Op. at 7-8.

In response to plaintiff's argument, defendant argues that plaintiff misrepresented a particular section of Hardy's declaration, a misrepresentation that would allow him to draw these inferences. Defendant explains that the plaintiff's statement—"the FBI agreed to process approximately 1,790 pages of the JFK Act records on Giancana which it had retained in its possession"—is false. Pl.'s Mot. at 4. Defendant argues that these copies did not specifically pertain to Giancana as the relevant portion of Hardy's declaration merely stated that "[a]s a result of the search for documents accessioned to NARA, the FBI located approximately 1,790 pages of material." Status Decl. of David M. Hardy [57-1] ¶ 10. Defendant argues that nowhere in the declaration does it state that the 1,790 pages specifically referred to Giancana. Id.

It is established law that an agency "'need not respond to a FOIA request for copies of documents where the agency itself has provided an alternative form of access,' i.e., making records available in a reading room." Oglesby v. United States Dep't of the Army, 920 F.2d 57, 70 (D.C. Cir. 1990) (quoting Tax Analysts v. United States Dep't of...