Marino v. Drug Enforcement Admin.

• Decision Date: 13 July 2012
• Docket Number: No. 10–5354.,10–5354.
• Citation: 685 F.3d 1076
• Parties: Carlos MARINO, Appellant v. DRUG ENFORCEMENT ADMINISTRATION, as a Component of the Department of Justice, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

685 F.3d 1076

Carlos MARINO, Appellant

v.DRUG ENFORCEMENT ADMINISTRATION, as a Component of the Department of Justice, Appellee.

No. 10–5354.

United States Court of Appeals, District of Columbia Circuit.

Argued May 14, 2012.

Decided July 13, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:06–cv–01255).

P. Sebastian Ruiz, Student Counsel, argued the cause as amicus curiae in support of appellant. With him on the briefs were Steven H. Goldblatt, appointed by the court, Doug Keller and Nilam A. Sanghvi, Supervisory Attorneys, and Zach Perez, Student Counsel.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: SENTELLE, Chief Judge, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

The district court entered summary judgment against Carlos Marino on his claim brought under the Freedom of Information Act. Before us is Marino's appeal of the district court's denial of his motion to reconsider that decision. For the reasons set forth below, we reverse and remand for the district court to take up again Marino's motion.

I

Carlos Marino is currently incarcerated for a 1997 conviction for drug conspiracy. In 2004, he submitted a request to the Drug Enforcement Administration (DEA) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking all documents indexed under number 3049901 of the DEA's Narcotics and Dangerous Drug Information System (NADDIS) that were “already public information or [were] required to be made public” in two criminal trials from 1997 and 1998. Letter from Carlos Marino to FOIA Operations Unit, Drug Enforcement Admin. (May 4, 2004). Marino alleges in these proceedings that NADDIS No. 3049901 belongs to Jose Everth Lopez, a co-conspirator who testified against him at trial. Marino suspects the prosecution engaged in various forms of misconduct during trial, especially in its dealings with Lopez.

The DEA denied Marino's FOIA request, issuing a Glomar response ¹ “neitherconfirm[ing] nor den[ying] the existence of any requested records.” Letter from Katherine E. Myrick, Chief, Operations Unit of FOI/Records Mgmt. Section, Drug Enforcement Admin., to Carlos Marino (Aug. 13, 2004). Invoking FOIA exemption 7(C), which allows an agency to withhold “information compiled for law enforcement purposes” if disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C), the DEA stated that “to confirm the existence of law enforcement records or information about another person is considered an unwarranted invasion of personal privacy.” Letter from Katherine E. Myrick to Carlos Marino, supra.

After an unsuccessful administrative appeal, Marino filed a complaint in the district court that rested on two theories. First, he maintained that most of the information he sought had already been disclosed publicly and must therefore be released under FOIA's “public domain” exception. Second, he claimed that the public interest in revealing the government misconduct he alleged outweighed the personal privacy interests the DEA had interposed. The DEA moved for summary judgment, relying again on exemption 7(C). Despite asking for and receiving three extensions of time to respond, Marino's counsel never did. Two months after the final extended deadline, the district court concluded that Marino had effectively conceded the arguments in the DEA motion and granted summary judgment against him.

Soon after, Marino's attorney filed a motion for reconsideration. He asked that the court not charge Marino with his mistake, which he attributed to losing the draft response in his office and the difficulty of communicating with an imprisoned client. The motion remained pending for over two years before Marino—this time proceeding pro se—filed a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Marino offered a number of reasons he thought the court should revisit its decision. As relevant to this appeal, he blamed the failure to file a response on his “grossly negligent” attorney. The district court denied the motion for reconsideration and the Rule 60(b) motion in the same decision, concluding that granting either of them would be futile because Marino lacked a sufficient defense to the DEA's summary judgment motion. Marino v. Drug Enforcement Admin., 729 F.Supp.2d 237 (D.D.C.2010). Marino filed a timely notice of appeal, and we appointed amicus curiae to argue on his behalf. Through amicus, Marino challenges the district court decision only to the extent it addresses his argument under Rule 60(b)(6). We have jurisdiction to consider this appeal under 28 U.S.C. § 1291.

II

Federal Rules of Civil Procedure Rule 60(b)(6) grants a district court discretion to “relieve a party ... from a final judgment” for “any other reason that justifies relief.” This catchall provision has been interpreted to apply when a party demonstrates “extraordinary circumstances,” see Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 393, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (internal quotation marks omitted), which can include gross attorney negligence, see Jackson v. Wash. Monthly Co., 569 F.2d 119, 122 (D.C.Cir.1978). A party seeking relief must also meet a threshold timelinessrequirement, FED. R. CIV. P. 60(c)(1), and show that it has “a meritorious claim or defense to the motion upon which the district court dismissed the complaint,” Murray v. District of Columbia, 52 F.3d 353, 355 (D.C.Cir.1995) (quoting Lepkowski v. U.S. Dep't of Treasury, 804 F.2d 1310, 1314 (D.C.Cir.1986)) (internal quotation mark omitted). Although we review a district court's denial of a Rule 60(b) motion for abuse of discretion, Computer Prof'ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897, 903 (D.C.Cir.1996), we must consider underlying legal issues de novo, see Davis v. Dep't of Justice, 460 F.3d 92, 97 (D.C.Cir.2006). If the district court's decision to deny relief under Rule 60(b) was “rooted in an error of law,” we must remand for the court to consider anew whether to exercise its discretion under the correct legal standard. See Computer Prof'ls for Soc. Responsibility, 72 F.3d at 903 (quoting Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C.Cir.1988)).

The district court denied Marino's motion based solely on its determination that he failed to assert a meritorious defense to the arguments the DEA raised at summary judgment. Marino, 729 F.Supp.2d at 245. The limited scope of the district court decision defines both the narrow issue before us and the modest relief sought. We have no occasion to judge whether Marino meets Rule 60(b)(6)'s other prerequisites for relief, or if he has whether the district court would nonetheless be within its discretion to deny the motion. We conclude only that Marino has raised a meritorious defense, which entitles him to have the district court look again at his motion, but not necessarily to grant it.

To clear the “meritorious defense” hurdle, Marino need only provide “reason to believe that vacating the judgment will not be an empty exercise or a futile gesture.” Murray, 52 F.3d at 355. This is not a high bar. A meritorious defense is not measured by “[l]ikelihood of success,” but by whether it “contain[s] ‘even a hint of a suggestion’ which, proven at trial, would constitute a complete defense.” Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 374 (D.C.Cir.1980) (quoting Moldwood Corp. v. Stutts, 410 F.2d 351, 352 (5th Cir.1969)). Because a genuine dispute over material facts defeats a motion for summary judgment, seeFed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), Marino can show a “meritorious defense” with only a hint of a suggestion that key facts in the record aren't yet entirely clear.

Central to Marino's case is his allegation that the information he seeks has already been publicly disclosed. And the facts about that, he asserts, are in dispute. Under FOIA's “public domain” exception, an agency may not rely on an “otherwise valid [FOIA] exemption to justify withholding information that is already in the ‘public domain.’ ” Students Against Genocide v. Dep't of State, 257 F.3d 828, 836 (D.C.Cir.2001); see also Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 19 (D.C.Cir.1999) (explaining the exception's rationale that once information has become public, any damage the agency fears from disclosure has already been done). Marino attached to his complaint over 500 pages of exhibits and claimed that there is evidence among them to show that the information he seeks has already been publicly disclosed. The district court rejected that argument in its order denying the Rule 60(b) motion, concluding that Marino “fail[ed] to meet his burden of identifying the specific information he seeks that exists in the public domain” because his complaint consisted chiefly of “lists of witnesses and evidence introduced at a third party's criminal trial” without specifying which witnesses or evidence “related to the investigative records of E. Lopez.” Marino, 729 F.Supp.2d at 244–45.

Yet in the context of a Glomar response, the public domain exception is triggered when “the prior disclosure establishes the existence (or not) of records responsive to the FOIA request,” regardless whether the contents of the records have been disclosed. Wolf v. Cent. Intelligence Agency, 473 F.3d 370, 379 (D.C.Cir.2007). Marino's complaint alleged not only that some of the contents of Lopez's file had been released, but more particularly that the DEA had revealed publicly the link between Lopez and NADDIS No. 3049901. The exhibits attached to his complaint, which Marino used as support...