UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ JAMES LUTCHER NEGLEY, ) ) Plaintiff, ) ) v. ) Civil Action No. 03-2126 (GK) ) ) FEDERAL BUREAU ) OF INVESTIGATION, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiff James Luther Negley (“Plaintiff”), brings this

action against Defendant, Federal Bureau of Investigation (“FBI” or

“Defendant”), under the Freedom of Information Act (“FOIA”),

. This matter is before the Court on Plaintiff’s Motion

for Reconsideration [Dkt. No. 111]. Upon consideration of the

Motion, Opposition, Reply, and the entire record herein, and for

the reasons stated below, Plaintiff’s Motion for Reconsideration is

denied.

I. BACKGROUND1

This case concerns a FOIA dispute between Negley and the FBI

which has been ongoing for over nine years. On January 16, 2002,

1 The facts set forth herein are a summary of facts directly relevant to Plaintiff’s Motion for Reconsideration drawn, unless otherwise noted, from the facts set out in this Court’s March 1, 2011, Memorandum Opinion. See Negley v. F.B.I.,

(D.D.C. 2011). This Court’s September 24, 2009, Memorandum Opinion contains a more fulsome recitation of the case’s lengthy factual background. See Negley v. F.B.I.,

(D.D.C. 2009). Plaintiff submitted a FOIA request (“2002 FOIA request”) to the

FBI’s San Francisco Field Office (“SFFO”) seeking “a copy of any

records about [him] maintained at and by the FBI in [the San

Francisco] field office.” On August 24, 2007, after several years

of litigation regarding the specifics of the FBI’s FOIA

responsibilities, Plaintiff filed a Motion for Partial Summary

Judgment [Dkt. No. 71], arguing that Defendant’s search and

production of documents were inadequate as a matter of law, and

failed to comply with his FOIA request. On the same day, Defendant

filed a Second Motion for Summary Judgment on all claims raised by

Plaintiff [Dkt. No. 72].

On June 15, 2009, unbeknownst to the Court, Plaintiff

submitted a separate, expansive FOIA request (“2009 FOIA request”)

to Defendant, seeking “all records in the possession of the Federal

Bureau of Investigation relating, in any way, to James Lutcher

Negley.” Eighth Hardy Decl. ¶ 10, Apr. 22, 2010 [Dkt. No. 103-3].

Neither party informed the Court of Plaintiff’s June 2009 request.

On September 24, 2009, this Court granted Plaintiff’s Motion

for Partial Summary Judgment and denied Defendant’s Second Motion

for Summary Judgment, finding that Defendant’s search for

responsive documents was inadequate, and that Defendant’s

production of documents was insufficient. Negley v. FBI,

(D.D.C. 2009). The Court entered a very detailed

Order, requiring Defendant to conduct certain searches, produce

-2- material to Plaintiff, and make its affiants available for

deposition, all to satisfy Plaintiff’s 2002 FOIA request. Order 1-

4, Sept. 24, 2009 (the “September 24, 2009, Order”) [Dkt. No. 90].

Over the following several months, Defendant took steps to comply

with the September 24, 2009, Order.

On April 5, 2010, Plaintiff filed a Motion for Contempt for

Defendant’s Failure to Comply with the Court’s September 24, 2009,

Order (“Pl.’s Mot. for Contempt”) [Dkt. No. 102]. On March 1, 2011,

this Court denied Plaintiff’s motion, finding that the FBI searched

for and produced all documents responsive to Plaintiff’s 2002 FOIA

request and required by the Court’s “reasonably clear and

unambiguous” September 24, 2009, Order. Negley v. F.B.I.,

(D.D.C. 2011) (hereinafter “March 1, 2011,

Opinion” or “Opinion”).

Subsequently, on March 9, 2011, Plaintiff filed the pending

Motion for Reconsideration (“Pl.’s Mot.”) of the March 1, 2011,

Order denying Plaintiff’s motion for contempt. On March 25, 2011,

Defendant filed its Opposition (“Def.’s Opp’n”) [Dkt. No. 113]. On

April 1, 2011, Plaintiff filed his Reply [Dkt. No. 114].

II. STANDARD OF REVIEW

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). A motion for reconsideration of a contempt motion against

-3- a party to the dispute is properly considered under Rule 54(b). See

S.E.C. v. Bilzerian,

(D.D.C. 2010)

(“[C]ourts usually analyze motions for reconsideration of civil

contempt orders under Rule 54(b) . . . .”).

Rule 54(b) permits the district court to reconsider an

interlocutory order “as justice requires.” Singh v. George

Washington Univ.,

(D.D.C. 2005) (citing

Cobell v. Norton,

(D.D.C. 2004)). The term

“‘[a]s justice requires’ indicates concrete considerations” by the

court, Williams v. Savage,

(D.D.C. 2008),

such as “whether the court 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. Nat’l Inst. of Health,

(D.D.C.

2008) (internal citation and quotation marks omitted).

“Furthermore, the party moving to reconsider carries the

burden of proving that some harm would accompany a denial of the

motion to reconsider.”

. The court’s discretion under

54(b) 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,

(internal citations omitted).

-4- III. ANALYSIS

Plaintiff urges the Court to reconsider its March 1, 2011,

Opinion denying his motion for contempt. Plaintiff does not rely on

any newly discovered evidence or changes in the law to support his

Motion. Instead, Plaintiff argues that the Court (1)

“mischaracterizes Negley’s 2002 FOIA request as seeking documents

only maintained at and by the San Francisco Field Office,” and (2)

“misunderstand[s]” the effect of Negley’s 2009 FOIA request. Pl.’s

Mot. 1-2, 4. In essence, Plaintiff seeks to have this Court

reconsider the geographic scope of his 2002 FOIA request and the

reasonableness of Defendant’s use of an April 2002 cut-off date for

production of documents responsive to that request. Plaintiff’s

arguments are considered in turn.

A. Plaintiff’s Motion for Reconsideration of the Geographic Scope of Plaintiff’s 2002 FOIA Request Is Denied.

Plaintiff’s 2002 FOIA request sought “any records about [him]

maintained at and by the FBI in [the San Francisco] field office.”

Negley,

. Plaintiff included the language

specifying the relevant field office because he was informed that

FBI protocol requires that FOIA requests be directed to specific

offices. Pl.’s Mot. 1. As the Court has previously noted, because

it was not aware of Plaintiff’s 2009 FOIA request at the time of

its September 24, 2009, Order, that Order “referred only to the

request that Negley made in 2002.” Negley,

(emphasis in original). Plaintiff now asserts that the scope of

-5- this request was expanded to include records outside of the SFFO,

and that Defendant “violate[d] the September 24, 2009 Order by

producing documents only maintained at and by the SFFO.” Pl.’s Mot.

1-2.

Plaintiff states that he sent an amendment to his original

2002 FOIA request to the SFFO on April 23, 2002, id. at 2, which

stated in part: “Please amend my 1/16/2002 FOIA request to your

office to include . . . file no. [S-1575] as well as any others.”

Id., Ex. A. Plaintiff argues that “unlike the initial [2002 FOIA

request] to the SFFO, [Plaintiff’s amended request] does not

contain any geographic limitation.” Id. at 2.

The plain and logical reading of the amended request is that

“any others” refers to other file numbers at the SFFO office.2 This

is especially apparent in light of Plaintiff’s understanding that

“FBI protocol required that he make a FOIA request directly to a

field office” to request any records from that office.3 See id. at

2 Plaintiff has previously stated that his only intention for amending his 2002 request was to supplement his request for files at the SFFO with a specific request for File S-1575. Under oath, Plaintiff declared, “To the extent that there is any ambiguity in the language of my April 23, 2002 correspondence to the FBI, it was and still is my intent to amend my FOIA request to include, in addition to all files about me at the SFFO, the entire File No. S- 1575, regardless of whether or not that file is about me.” Supp. Negley Decl. ¶ 3, Feb. 8, 2007 [Dkt. No. 71-3]. 3 Indeed, Plaintiff further manifested this understanding by contacting other field offices directly when he sought files maintained at and by those offices. See Negley,

(request sent to Sacramento); Negley,

n.6 (continued...)

-6- 2 & n.1 (citing Maydak v. Dep’t of Justice,

(D.D.C. 2003) (“For records held by a field office of the

[FBI] ..., however, you must write directly to that ... field

office address.”) (citation omitted)).

In sum, this Court has already considered and determined the

scope of Plaintiff’s 2002 FOIA request, and nothing in Plaintiff’s

motion or reply changes the Court’s prior analysis. See Negley,

.

B. Plaintiff’s Motion for Reconsideration of the Reasonableness of Defendant’s Cut-off Date for Responsive Documents Is Denied.

Next, Plaintiff asserts that the Court erred when it “held

that ‘it was reasonable for the FBI to use a cut-off date [for

production of responsive documents] of April 2002.’” See Pl.'s Mot.

4 (quoting Negley,

). As is well established,

a motion for reconsideration is not an opportunity to reargue facts

and theories upon which the court has already ruled, or present

theories or arguments that could have been advanced earlier. Estate

of Gaither ex rel. Gaither v. District of Columbia,

, 10 & n.4 (D.D.C. 2011).4

3 (...continued) (requests sent to Miami, Los Angeles, and San Antonio). Defendant, meanwhile, was aware of Plaintiff’s requests to other offices. See, e.g., Seventh Hard Decl. ¶ 39(b). 4 Plaintiff cites to one additional case in support of his claim that Defendant’s use of a cut-off date earlier than the issuance of the Court’s September 24, 2009, Order is “virtually per (continued...)

-7- This Court has already considered and determined the

reasonableness of Defendant’s choice of cut-off dates. See Negley,

. The Court held that, under the

circumstances of this case, “it was reasonable for the FBI to use

a cut-off date of April 2002, when it was aware that it would also

have to respond to Plaintiff's broader 2009 FOIA request.”

; see also Public Citizen v. Dep’t of State,

(D.C. Cir. 2002) (“nothing in this opinion precludes . . . [a]

federal agency from attempting a more compelling justification for

imposing a date-of-request cut-off on a particular FOIA request.”);

McGehee v. Cent. Intelligence Agency,

(D.C.

Cir. 1983) (courts must “turn to the particular facts of the

case . . . to assess the reasonableness of the agency’s conduct.”);

Jefferson v. Bureau of Prisons,

(D.D.C.

2008) (“the proper question here is whether the cut-off date used

was reasonable in light of the specific request Plaintiff made.”).

4 (...continued) se unreasonable.” See Pl.’s Mot. 5-6. However, Plaintiff’s reliance on Wilderness Society v. U.S. Bureau of Land Management, No. Civ. A. 01CV2210,

(D.D.C. Feb. 4, 2003) is unavailing. There, the district court stated that “the agency would have a heavy, if not impossible, burden to justify conducting its renewed search subject to a time limitation based upon the date of plaintiff’s initial request.” See Wilderness Soc’y,

, at *7 n.18. However Defendant correctly notes that in this case, unlike in Wilderness Society, the Plaintiff submitted a subsequent 2009 FOIA request for a broader set of documents. See Def.’s Opp’n 7. Moreover, after issuance of the Court’s September 24, 2009, Order, Defendant responded by conducting searches designed to locate records responsive to both the 2002 and 2009 FOIA requests.

.

-8- The Court notes that under other circumstances Defendant’s

decision to impose a cut-off date so far in the past might well

have been deemed improper. Here, however, Defendant reasonably

imposed its 2002 cut-off because it was also preparing to produce

documents responsive to a much broader FOIA request, which entirely

encompassed any post-April 2002 SFFO documents responsive to the

2002 request. Negley,

. Plaintiff has offered

no new evidence, law, or argument to reverse the Court’s prior

analysis.

Furthermore, Plaintiff has not suffered an injustice from the

use of the 2002 cut-off date. See Cobell v. Norton,

(D.D.C. 2005) (“In order for justice to require

reconsideration, logically, it must be the case that, some sort of

‘injustice’ will result if reconsideration is refused.”). As

Defendant has pointed out, its renewed search for documents

responsive to both Plaintiff’s 2002 and 2009 FOIA requests found

that all documents responsive to the 2002 FOIA request, even apart

from the April 2002 cut-off date, had already been released. See

Eighth Hardy Decl. ¶ 14. Plaintiff never addresses this fact.

-9- IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for

Reconsideration is denied.

/s/ August 31, 2011 Gladys Kessler U.S. District Court Judge

Copies to: Attorneys of record via ECF.

-10-