Cable News Network, Inc. v. Fed. Bureau of Investigation

401 F.Supp.3d 187

CABLE NEWS NETWORK, INC., Plaintiff,

v.FEDERAL BUREAU OF INVESTIGATION, Defendant.

Civil Action No. 17-1167 (JEB)

United States District Court, District of Columbia.

Signed August 12, 2019

Kristen Elizabeth Boysen, Taylor Bell Graham, Brent Edward Pelton, Pelton Graham LLC, New York, NY, for Plaintiffs.

Mitchell S. Segal, Law Offices of Mitchell S. Segal, P.C., Great Neck, NY, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Last June, this Court granted Plaintiff Cable News Network's motion to unseal certain judicial records. In its opposition to that request, Defendant Federal Bureau of Investigation never mentioned Freedom of Information Act Exemption 3. Nor did that exemption make any appearance in an FBI agent's declaration filed in support of the Government's position. In now seeking partial reconsideration of the Court's decision, the Bureau nevertheless contends that the Court's failure to address Exemption 3 constituted either "clear error" or "manifest injustice." The Court, Defendant believes, should have construed three sentences of the declaration — which referred to a different statute altogether — as not only invoking FOIA Exemption 3 but also fulfilling Defendant's burden of demonstrating the applicability of that exemption, and thus delivering it victory. While such a position certainly takes chutzpah, it does not take the cake here. The Motion for Reconsideration will be denied.

I. Background

News broke in May of 2017 that former FBI Director James Comey had penned several memos documenting his meetings with President Trump. This revelation set off a mad dash by several media outlets — including CNN — to get their hands on the documents, which, like many disputes concerning government records, soon fell to the courts. Over the last two years, CNN's suit against the Bureau has gone through several twists and turns before arriving at the present Motion. Only an abbreviated rehearsal of this history need be repeated here.

In February 2018, this Court granted the FBI's first request for summary judgment and refused to release the Comey memos, citing the then-ongoing nature of the Special Counsel's investigation into Russian interference in the 2016 election. See Cable News Network, Inc. v. FBI, 293 F. Supp. 3d 59, 77 (D.D.C. 2018). In coming to this determination, the Court relied on two declarations from FBI Special Agent David W. Archey, filed under seal, and an ex parte proffer session. Id. at 66–67. CNN appealed, but before much could happen in that proceeding, outside circumstances changed. The Government turned over redacted versions of the memos to Congress, which in turn released them to the public. The Circuit thus remanded the matter to this Court to consider the propriety of the remaining withheld material. See Cable News Network, Inc. v. FBI, 2018 WL 3868760, at *1 (D.C. Cir. Aug. 8, 2018). Both parties again moved for summary judgment. The ensuing proceedings culminated in a decision in June granting in part and denying in part summary judgment to both CNN and the FBI. See Cable News Network, Inc. v. FBI, 384 F.Supp.3d 19, 25–26 (D.D.C. 2019).

In conjunction with its second motion for summary judgment, CNN also filed a simultaneous motion for access to the two FBI declarations filed during the first round of summary-judgment briefing, as well as a transcript of the ex parte proffer. See ECF No. 72 (Pl. Access Mot.). Plaintiff sought this information under both common-law and First Amendment rights of access to judicial records. Id. In response to CNN's motion, the FBI eventually turned over much of the requested information. See ECF No. 76 (Def. Access Opp.) at 2; ECF No. 75, Attach. 1 (Declaration of Michael Seidel); ECF No. 81, Attach. 1 (Declaration of David M. Hardy); ECF No. 84 (Notice). Its redactions to one declaration, however, required judicial intervention. See Hardy Decl., ¶ 6. On this lingering dispute, the Court ruled that Plaintiff had met its burden under the common-law right of access. See CNN, 384 F.Supp.3d at 44. The network, therefore, was entitled to see the last unredacted Archey declaration.

The FBI now seeks reconsideration of this last decision. It has moved under Rule 59(e) to request that the Court revisit its prior reasoning, urging it to amend the Opinion to reflect that the Bureau "effectively asserted" FOIA Exemption 3 as a basis to protect the redactions in the declaration. See ECF No. 87, Attach. 1 (Def. Mot.) at 1; see also ECF No. 92 (Def. Reply) at 1–2 (similar). Defendant then asks that the Court find that this exemption covers the information at issue and, accordingly, reverse its judgment. See Def. Mot. at 1.

II. Legal Standard

Federal Rule of Civil Procedure 59(e) permits the filing of a motion to alter or amend a judgment when such motion is filed within 28 days after the judgment's entry. The Court must apply a "stringent" standard when evaluating Rule 59(e) motions. See Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004) (citation omitted). "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." Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal quotation marks and citation omitted). Critically, Rule 59(e) "is not a vehicle to present a new legal theory that was available prior to judgment." Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012).

III. Analysis

The FBI's core contention is that the Court failed to notice that the Government had asserted the protection of FOIA Exemption 3 in connection with the access motion. This exemption covers material "specifically exempted from disclosure by [a] statute." 5 U.S.C. § 552(b)(3). Had the Court spotted its argument and taken up this exemption on the merits, Defendant asserts, it would have ruled in the FBI's favor. See Def. Mot. at 1, 3–4. A reader familiar with the briefing in this case, however, would be forgiven for being confused about the basis for such Motion. Not once, as the FBI concedes, did it mention this exemption in any of its filings pertaining to the access motion. Id. at 3. The path by which the Bureau reaches its conclusion that the Court erred, therefore, requires a bit of explanation.

CNN filed its access motion in January of 2018. In Defendant's opposition, it tossed up a slew of reasons why Plaintiff should not get the information it wished under the common-law right of access to judicial records. See ECF No. 76 (Def. Access Opp.) at 3–6, 10–11. That Exemption 3 covered the material at issue, however, was not one of them.

Then, a few weeks after briefing wrapped up on that motion — and following the Special Counsel's announcement that his investigation had concluded — the FBI withdrew some of its redactions to the Archey declaration, but retained others. See ECF No. 79; ECF No. 81. To its release of the final version of the document at issue, which still contained some redactions, the Government attached the sworn declaration of another FBI special agent, David Hardy, who explained the FBI's rationale for its continued tight-fistedness over the remaining redacted information. Hardy pointed out that the FBI had determined that certain material must remain secret "in order to protect FBI law enforcement interests," even though the Special Counsel's investigation had concluded. Id., ¶ 6. This was so, he said, for two reasons. First, the redactions contained "non-public information about intelligence methods" that the FBI was "obligated to protect ... under the National Security Act of 1947." Id. In addition, Hardy continued, "some of these same redactions could, if lifted, expose information that the FBI would typically redact under Exemption (b)(7)(E) in a FOIA case." Id.

In its Opinion, the Court addressed each of these two reasons in turn. It first concluded that, contrary to what the Hardy declaration seemed to imply, invoking the National Security Act was not a way around the common-law right of access to judicial records. See CNN, 384 F.Supp.3d at 38–40. This conclusion followed closely from the D.C. Circuit's reasoning in Metlife, Inc. v. Financial Stability Oversight Council, 865 F.3d 661, 669–73 (D.C. Cir. 2017). The FBI's first avenue, therefore, could not deliver the outcome it sought. Next, the Court turned to the sentence in Hardy's declaration that mentioned FOIA Exemption 7(E). It concluded that the FBI's brief and equivocal statement fell far short of meeting its burden. CNN, 384 F.Supp.3d at 40–41. For this reason, it was unnecessary for the Court to wade into the "murky waters" flooding the intersection of the common-law right of access and FOIA's statutory scheme for transparency. Id.

Now on reconsideration, the FBI says that it meant to argue something different. Its invocation of the National Security Act, it asserts, was really an attempt to raise the Freedom of Information Act. The reasoning proceeds as follows. In its original summary-judgment briefing regarding the memos, the Bureau had relied on the former Act as the statute that "exempt[s] from disclosure" certain information under the latter Act's Exemption 3. See 5 U.S.C. § 552(b)(3) ; ECF No. 69, Attach. 1 (Def. MSJ) at 17–18. By referencing the National Security Act in its declaration here, the FBI now says, it intended to do the same thing. See Def. Mot. at 3. So, while it "did not expressly mention" the exemption's name or language in its briefing on access, it asserts that the Court should have inferred such intention from the earlier pleadings. Id. The Bureau now asks the Court to "deem[ ] the FBI" to have "effectively asserted" Exemption 3. Id. at 1, 3; see also Def. Reply at 1–3.

But that is not all. Defendant seeks this mulligan in the context of Rule 59(e), which, as it acknowledges, requires amendment only in the...