Case 1:10-cv-00750-JEB Document 14

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant. Civil Action No. 10-750 (JEB)

MEMORANDUM OPINION AND ORDER On October 26, 2011, the Court issued a Memorandum Opinion and Order granting Plaintiff Citizens for Responsibility and Ethics in Washingtons Motion for Attorney Fees and Costs in an action relating to two Freedom of Information Act requests CREW had submitted to the Department of Justices Office of Legal Counsel. See CREW v. DOJ, --- F. Supp. 2d ---, 2011 WL 5075102 (D.D.C. 2011). In that Opinion and Order, the Court found first that CREW had substantially prevailed and was thus eligible to receive a fee award, and second that the multi-factor entitlement inquiry favored an award. On November 4, 2011, DOJ filed a Motion for Reconsideration of that decision, challenging the Courts application of one of the four factors at play in the entitlement determination. Because the Court finds that DOJs argument is based on a misreading of its earlier Opinion and because, even if it were not, the contested portion of the Opinion was not crucial to the Courts ultimate decision, it will decline DOJs invitation to reconsider it. I. Standard of Review

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A district court may revise its own interlocutory decisions at any time before the entry of a judgment adjudicating all the claims and all the parties rights and liabilities. Fed. R. Civ. P. 54(b). Rule 54(b) permits the Court to provide relief on a Motion for Reconsideration as justice requires. Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)) (internal quotation marks omitted). As justice requires entails determining, within the Courts discretion, whether reconsideration is necessary under the relevant circumstances. Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005). The Court may consider whether it patently misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or whether a controlling or significant change in the law has occurred. In Def. of Animals v. Natl Institutes of Health, 543 F. Supp. 2d 70, 75-76 (citing Singh, 383 F. Supp. 2d at 101). And even when justice does not require reconsideration of an interlocutory ruling, a decision to reconsider is nonetheless within the courts discretion. Id. (citing Cobell, 355 F. Supp. 2d at 540). The court's discretion under 54(b), however, is subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again. Singh, 383 F. Supp. 2d at 101 (internal citations omitted). II. Analysis

Both the factual background of this case and the legal framework at play are set out in detail in the Courts October 26th Opinion, and the Court will not rehash them at this juncture. See CREW, 2011 WL 5075102, at *1-*5. DOJ does not challenge the Courts determination that CREW was eligible for fees; its Motion for Reconsideration concerns only the entitlement inquiry. In determining whether CREW was entitled to fees, the Court considered four factors,

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the application of just one of which the public benefit factor is at issue here. DOJ argues that the Courts finding of a public benefit was based on a negative inference drawn from the incorrect and unsupported factual premise that the remaining emails had little to do with Yoos substantive activities at OLC and . . . only mundane or unrelated email survived. Mot. at 1-2 (quoting CREW, 2011 WL 5075102, at *7). DOJ challenges this incorrect and unsupported factual premise by pointing out that OLC withheld numerous substantive emails pursuant to FOIA exemption (b)(5) because they [were] privileged. Id. at 2. The challenged portion of the Opinion is expressly structured as a response to DOJs primary argument that its disclosures did not benefit the public: CREWs issuance of a press release that stated that the emails it obtained shed[ ] no light on Mr. Yoos role in drafting the torture memos or, indeed, on anything Mr. Yoo may have done while at DOJ. CREW, 2011 WL 5075102, at *7 (quoting CREW, Found John Yoo Emails Shed No Light on What Mr. Yoo Did for the Department of Justice, October 25, 2010, available at http://www.citizensforethics.org/press/entry/found-john-yoo-emails-shed-no-light-ondepartment-of-justice). The Court agreed with CREW that that press release did not contradict its claim of public benefit because CREW did not expect the email to expose substantive information about Yoos work at DOJ. Id. Instead, CREWs purpose was to determine the extent to which any of Yoos email may have been willfully destroyed. Any lack of responsive substantive emails, accordingly, only strengthened CREWs position on public benefit. DOJ objects on the ground that it is simply not true that only mundane or unrelated email survived, insomuch as substantive emails responsive to CREWs request were identified and withheld pursuant to FOIA exceptions and accounted for in the Vaughn index. See Mot. at 1-2, 6. The Court made no factual finding to the contrary. See CREW, 2011 WL 5075102, at *7

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(That only mundane or unrelated email survived, CREW maintains . . . . (emphasis added)). Rather, it merely approved CREWs argument that its statement in a press release that the emails it obtained were not substantive was not fatal to a finding of public benefit because obtaining substantive email was not the purpose of its FOIA request. See id. To the extent the Courts earlier Opinion suggested otherwise, however, it is worth explicitly clarifying the point DOJ now presses: both CREW and the Court agree that the record indicates that OLC located some substantive emails that were withheld pursuant to FOIA exemptions. See Opp. at 8-9. More specifically, 147 responsive emails were withheld pursuant to exemption (b)(5) without objection. See Mot. at 6; Mot. for Atty Fees, Exh. J (Letter from Paul Colborn, Aug. 31, 2010). Notably, DOJ did not argue from or even identify this fact in its briefing on the public benefit factor. See Opp. to Pl.s Mot. for Atty Fees at 15-17. Instead, DOJ responded to CREWs argument about why the dearth of substantive emails supported its position on the public-benefit factor by dismissing it as rank speculation and reemphasizing that the documents produced in this lawsuit shed no light on government activities. Id. at 17. But even had it responded with the argument it now pursues i.e., that Yoos substantive emails were not missing but withheld pursuant to FOIA exemption, Mot. at 6 the Court would not have responded to CREWs press release any differently. Of the 147 withheld emails DOJ describes as substantive, only 55 were sent by Yoo. See Opp. at 8; Mot., Exh. B (draft Vaughn index). Even taking the withheld emails into account, then, CREW was not off-base to suggest that a paucity of substantive emails remained. See Opp., Exh. C (CREW Yoo Report) (For many, 380 emails, the total number produced and withheld, would represent a daily or perhaps weekly haul of emails . . . . Yet DOJ claimed a nearly two-year total of emails for Mr. Yoo . . . that averages out to Mr. Yoo sending or receiving approximately one

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email every other day.). In any event, the information CREW obtained concerning the volume and content of Yoos email add[ed] to the fund of information the public had available on the issue of Yoos missing email and the torture memoranda. Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995) (quoting Fenster, 617 F.2d at 744). The public was free to infer from OLCs productions and withholdings what it would. The Courts decision, furthermore, stands without the contested portion of its Opinion. CREW meets the public benefit factor for the reasons articulated in the Courts October 26th Opinion, and, even if it did not, no single factor in the four-factor entitlement analysis is dispositive. See Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008). The sifting of those criteria over the facts of a case is a matter of district court discretion. Tax Analysts v. DOJ, 965 F.2d 1092, 1094 (D.C. Cir. 1092) (citing Church of Scientology v. Harris, 653 F.2d 584, 590 (D.C. Cir. 1981)). The Court, therefore, declines to reconsider its previous determination that CREW is entitled to attorney fees and will issue its determination as to the exact amount of fees it will award in short order. III. Conclusion

For the foregoing reasons, the Court ORDERS that Defendants Motion for Reconsideration is DENIED.

SO ORDERED. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: November 21, 2011