Piper v. U.S. Dept. of Justice

• Decision Date: 13 June 2005
• Docket Number: Civil Action No. 98-1161 (RCL).
• Citation: 374 F.Supp.2d 73
• Parties: Harry C. PIPER, III, Plaintiff, v. UNITED STATES, DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

374 F.Supp.2d 73

Harry C. PIPER, III, Plaintiff, v. UNITED STATES, DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 98-1161 (RCL).

United States District Court, District of Columbia.

June 13, 2005.

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Daniel S. Alcorn, Falls Church, VA, for Plaintiff.

Beverly Marie Russell, Charlene Denise Bey-Proctor, Michael C. Johnson, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

LAMBERTH, District Judge.

Before the court is defendants' motion [120] for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). This court previously ordered defendants, the Department of Justice and the FBI ("DOJ"), to locate and release in full several documents that they could not locate that were responsive to plaintiff's Freedom of Information Act ("FOIA"). DOJ had been unable to justify its redactions of those documents. Plaintiff, believing this court should have ordered additional disclosure, filed an appeal now pending before the Court of Appeals. DOJ, after undue and unsettling delay, at last found the documents it could not find and realized why many of its proposed redactions were so critical: they protected the privacy interest of third parties. Now, on behalf of those third parties, DOJ returns to this court reluctantly, admits its mishandling of plaintiff's FOIA request, and seeks relief from its obligation to produce those portions of documents redacted to protect third-party privacy rights. For the reasons set forth below, the court will indicate that it would grant DOJ's motion for relief from judgment upon remand from the Court of Appeals. At this time, however, defendants' motion must be denied for lack of jurisdiction.

I. FACTUAL BACKGROUND

This is a FOIA case in which plaintiff seeks information about the DOJ's investigation and prosecution of the kidnaping of his mother. There have been a spate of partial summary judgment motions and DOJ has produced over 80,000 pages of responsive documents.

On December 1, 2003, this court disposed of the parties' final cross-motions for summary judgment. See Piper v. Dep't of Justice, 294 F.Supp.2d 16 (D.D.C.2003). While the court was generally satisfied at the time with DOJ's final document search and its withholdings, the court noted some 23 documents that DOJ redacted without any justification and ordered that these documents be released in full. DOJ had released to plaintiff redacted versions of these 23 documents but had neglected to label these documents with file or serial numbers. When plaintiff challenged the propriety of DOJ's redactions during the summary judgment process, DOJ was unable to locate, even after assistance from plaintiff, the original documents and therefore DOJ was unable to give the court any basis for the redactions except for a conclusory claim that the redactions were based on FOIA Exemption 7(C), among others. Id. at 31 & n. 10.

Displeased with the court's demand for full release of the 23 documents, DOJ filed a motion requesting the court to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e) on December 15, 2003. See Piper v. Dep't of Justice, 312 F.Supp.2d 17 (D.D.C.2004). Even at this point, DOJ had not located the 23 documents and its Rule 59 motion did not make any new arguments concerning the propriety of the redactions. Rather, the motion asserted, in bizarre disregard of FOIA precedent, that the redactions were properly justified by DOJ's mere invocation, mere naming, of a FOIA exemption. Id. at 22. Invocation alone will not permit a redaction or withholding; the agency owes the requester its reasons so that its claims of exemption can be fairly tested. Schiller v. N.L.R.B., 964 F.2d 1205, 1209 (D.C.Cir.1992). Largely on this basis, the court, on March 26, 2004, denied DOJ's motion to alter or amend judgment.

In May of 2004, plaintiff filed a notice of appeal. Plaintiff currently has an appeal from this court's March, 2004 order and previous orders pending with the Circuit Court of Appeals for the District of Columbia Circuit.

In August of 2004, some five months after losing the motion to alter or amend judgment, DOJ filed the motion for relief from judgment that is now before the court. At last, DOJ had located the 23 documents. Once located, DOJ was able, so it seems, to rediscover the reasons for its redactions. DOJ is now prepared to release to plaintiff most of these documents, 17 of them, in full without redactions. The remaining six documents, however, had been redacted to protect the privacy interest of third parties, confidential informants and investigation targets.

Near the time of the filing of its Rule 60(b) motion, DOJ moved the Court of Appeals to stay its proceedings until this court had an opportunity to rule on its 60(b) motion. Their motion was denied and briefs are now being filed in the Court of Appeals. DOJ asks this court to vacate that part of its order of December 1, 2003 requiring full release of those six documents, thereby extricating the department from an embarrassing morass and protecting third-party privacy interests.

II. ANALYSIS

A. Rule 60(b) and Pending Appeals

Federal Rule of Civil Procedure 60(b) allows a district court to, in certain circumstances, relieve a party from an order or judgment. But a district court's hands are somewhat tied when, as in this case, the order or judgment from which a party seeks relief is also the subject of a pending appeal. As has been noted before, the filing of a notice of appeal "confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal." United States v. DeFries, 129 F.3d 1293, 1302 (D.C.Cir.1997) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam)); LaRouche v. Dep't of Treasury, 112 F.Supp.2d 48, 52 (D.D.C.2000). In this situation, the district court may outright deny, but cannot outright grant, a Rule 60(b) motion. If the court is inclined to grant a Rule 60(b) motion while appellate review is ongoing, "the District Court may consider the 60(b) motion, and, if the District Court indicates that it will grant relief, the appellant may move the appellate court for a remand in order that relief may be granted." LaRouche, 112 F.Supp.2d at 52 (citing Hoai v. Vo, 935 F.2d 308, 312 (D.C.Cir.1991)); Office and Prof.l Employees Int'l Union, Local 2 v. NFL Players Ass'n, No. 89-1263, 1993 WL 468416 (D.D.C. Nov.3, 1993) (giving party the permission to seek remand from the Court of Appeals); Jefferson v. Dep't of Justice, No. 03-5173, 2004 WL 722274 (D.C.Cir. Apr.1, 2004) (remanding a case to the district court for consideration of a Rule 60(b) motion); see also Smith v. Pollin, 194 F.2d 349 (D.C.Cir.1952). With these ground rules in mind, the court turns to DOJ's Rule 60(b) motion.

B. DOJ's Rule 60(b) Motion

Rule 60(b) provides, in relevant part, that upon "motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for ... (6) any... reason justifying relief from the operation of the judgment." Generally, relief under Rule 60(b)(6) is granted sparingly and in extraordinary circumstances. Computer Profs. for Social Responsibility v. U.S. Secret Service, 72 F.3d 897, 903 (D.C.Cir.1996). A district judge "is vested with a large measure of discretion in deciding whether to grant a Rule 60(b) motion, and the district court's grant or denial of relief under Rule 60(b), unless rooted in an error of law, may be reversed only for abuse of discretion." Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C.Cir.1988).

In most cases, rule 60(b) motions are not opportunities for a losing party to present known facts that it should have presented prior to judgment. Computer Profs., 72 F.3d at 903. Moreover, an agency "generally waives any FOIA exemption it fails to raise at the initial proceedings before the district court." August v. FBI, 328 F.3d 697, 698 (D.C.Cir.2003). However, in certain FOIA cases where the judgment will impinge on rights of third parties that are expressly protected by FOIA, such as privacy or safety, district courts not only have the discretion, but sometimes the obligation to consider newly presented facts and to grant relief under Rule 60(b). Id.; Schanen v. Dep't of Justice, 798 F.2d 348, 349 (9th Cir.1985) (reversing denial of Rule 60(b) motion and preventing release of documents that, based on a review of in camera submissions, would endanger the lives of DEA agents and confidential informants); Billington v. Dep't of Justice, 301 F.Supp.2d 15 (D.D.C.2004); see also August, 328 F.3d at 699-702 (remanding case to district court under authority of 28 U.S.C. § 2106 because third party safety and privacy interests at stake and "the law does not require that third parties pay for the Government's mistakes").

In Computer Professionals, the District of Columbia Circuit reversed a district court's denial of the Secret Service's Rule 59(e) motion, which had been late filed and was therefore treated as a 60(b) motion. The Secret Service had submitted a new in camera declaration and requested the district court to reconsider whether FOIA Exemptions 7(C) and 7(D) would, in light of the new submission, permit withholding of a confidential informant's identity. Exemptions 7(C) and 7(D) prevent disclosure of information compiled for law enforcement purposes that, for 7(C), "could reasonably be expected to constitute an unwarranted invasion of personal privacy," 5 U.S.C. § 552(b)(7)(C), and for 7(D), could lead to the identification of a confidential source, id. § 552(b)(7)(D). In reversing the district court and choosing to rely on the newly submitted declaration, the circuit court noted the existence of a third-party interest and apparent good faith and speed of the Secret Service in filing its motion to...