UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RICHARD KING,

Plaintiff,

v. Civil Action No. 15-1445 (RDM)

UNITED STATES DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Richard King, proceeding pro se, brings this action under the Freedom of

Information Act (“FOIA”),

, against the Department of Justice. On March 28,

2017, the Court granted in part and denied in part the Department’s motion for summary

judgment. Dkt. 47. King now seeks to revisit the issues decided in that opinion. Months after

the final deadline to do so, King filed “part one” of his opposition to the Department’s motion,

along with a cross-motion for summary judgment. Dkt. 50. He subsequently moved for leave to

file “part two” of his opposition and cross-motion out of time and, at the same time, moved for

reconsideration of the Court’s March 28, 2017 opinion. Dkt. 52. Because King has failed to

show good cause for filing out of time and has failed to demonstrate that reconsideration is

warranted, the Court will deny King’s motion for leave to file out of time and motion for

reconsideration.

King had more than ample time to provide the Court with his response to the

Department’s motion for summary judgment. Having obtained numerous extensions, having

received clear notice of his final deadline, and having missed that final deadline by a period of many weeks, he cannot not now obtain a do-over. As explained in the Court’s March 28, 2017

opinion, one issue remains to be adjudicated, and, going forward, King should devote his

attention to that remaining issue.

I. BACKGROUND

King, who has been incarcerated throughout this proceeding, filed this action on

September 3, 2015, seeking records relating to his criminal convictions from four Department of

Justice components: the Federal Bureau of Investigation (“FBI”), the Office of the Solicitor

General (“OSG”), the Drug Enforcement Agency (“DEA”), and the Executive Office for United

States Attorneys (“EOUSA”). Dkt. 1 at 2–3 (Compl.). On March 3, 2016, the Department

moved to dismiss or, in the alternative, for summary judgment, arguing that each of these

components had conducted adequate searches and had released all non-exempt, reasonably

segregable records. Dkt. 26 at 1. In light of the fact that King was incarcerated and was

proceeding pro se, the Court sua sponte extended his time to file an opposition by several weeks

and ordered that he respond on or before April 15, 2016. See Dkt. 27. In that same order, the

Court cautioned King of the consequences should he fail to file a timely response.

Shortly before his time to respond expired, King filed a motion seeking an additional

sixty days to oppose the Department’s motion, Dkt. 30, which the Court granted, see Minute

Order (April 11, 2016). Under the revised schedule, King had until June 15, 2016 to file his

opposition.

Then, shortly before that date, King moved for an additional sixty days to file his

opposition. Dkt. 33. The Court, again, granted the relief King requested and extended his time

to respond until August 15, 2016. See Minute Order (June 13, 2016). Shortly before that

deadline, King sought a further extension, this time for ninety days. Dkt. 36. The Court granted

in part and denied in part that request, giving King an extension until October 7, 2016, to file his

2 opposition and cautioning him that “[n]o further extensions of time will be granted absent a

showing of extraordinary circumstances.” Minute Entry (Aug. 24, 2016). Notwithstanding that

admonition, the Court received a letter (dated October 2, 2016) from King on October 25, 2016,

arguing that he had been denied sufficient access to the prison library and seeking yet an

additional ninety-day extension. Dkt. 38. The Court granted that motion and granted King until

January 23, 2017, to file, but noted that 326 days was more than sufficient time to respond to the

Department’s motion and that the Court would not grant any further extensions. See Minute

Order (Nov. 9, 2016).

King did not file an opposition or cross-motion on January 23, 2017, but, instead, filed a

motion to “toll” his time to respond “until further notice” because, he asserted, the facility in

which he was incarcerated was frequently and without warning placed on lockdown for

indefinite periods of time, thus depriving him of access to the prison law library. Dkt. 41 at 2–3.

In response, the Court ordered the Department of Justice to disclose how many days King had

been on lockdown in the preceding year. See Minute Order (Jan. 26, 2017). The Department

answered that order, explaining that King had been on lockdown for 42 days between January

26, 2016 and January 26, 2017. Dkt. 42-1 at 1–2 (Cowart Decl. ¶ 3). In the ninety days

following the Court’s order granting King the final ninety-day extension, King was on a two-day

lockdown that ended the day of the Court’s order, and one additional lockdown from January 6,

2017, to January 17, 2017.

(Cowart Decl. ¶ 3). Thus, counting only that final extension

period, King has had over 75 days to respond—more than five times as much time as this Court’s

Local Rules ordinarily provide for an opposition. See Local Civ. R. 7(b). Moreover, in

aggregate, King had over 280 days when he was not on lockdown between the time the

Department filed its motion and the end of the final extension period. Even accepting that the

3 Department’s tally did not include occasional lockdowns “for short periods of time, typically an

hour up to a few hours,” Dkt. 42-1 at 2 (Cowart Decl. ¶ 4), the Court found that King had

received more than ample time to respond and thus denied his request for an indefinite extension,

Dkt. 46 at 3–4. The Court cautioned King, moreover, that it intended promptly to resolve the

Department’s long-pending motion to dismiss or, in the alternative, for summary judgment, and

that it would do so based on “whatever papers [were] then before the Court.”

.

Three weeks later, on March 28, 2017, the Court issued a Memorandum Opinion and

Order granting in part and denying in part the Department’s motion for summary judgment. See

Dkt. 47 at 11. King, by that point, had had more than 300 days to respond.

. Because he

failed to do so, the Court “accept[ed] the Department’s factual assertions to the extent they

[were] supported by declarations or other competent evidence” and independently assessed “the

sufficiency of the Department’s legal arguments,” as required by the D.C. Circuit’s decision in

Winston & Strawn, LLP v. McLean,

(D.C. Cir. 2016). Dkt. 47 at 4. The

Court concluded that the Department was entitled to summary judgment on King’s claims with

respect to the FBI, OSG, and the DEA.

at 5–10. The Court denied summary judgment on

King’s EOUSA claim, however, because the relevant declaration did not indicate whether the

agency, in withholding responsive records, had applied the proper test.

at 10–11. The Court

allowed the Department to file a renewed motion for summary judgment on this claim, id. at 11,

which is due on January 8, 2018, see Minute Order (Nov. 7, 2017).

On May 19, 2017, nearly two months after issuing its opinion, the Court received a letter

from King dated May 11. Dkt. 50 at 1–4. That letter asserts that five days before the Court ruled

on the Department’s motion, King sent the Court “part one” of his combined opposition to the

4 Department’s motion and cross-motion for summary judgment. 1 Id. at 1–2. King surmises that

that submission was lost in the mail, and he attributes his delay in completing “part two” of his

opposition and cross-motion to prison lockdowns in March, April, and May. Id. at 2–3.

Although he purported to attach a copy of his “part one” submission to his May 11, 2017 letter,

the Court received only the first three pages and the last page. See Dkt. 50 at 5–9.

Subsequently, King filed an undated motion 2 for leave to file (1) “part two” of his

combined opposition and cross-motion for summary judgment and (2) a motion for

reconsideration of the Court’s March 28, 2017 Memorandum Opinion and Order. Dkt. 52 at 1–

2. King claims that he “was in the home stre[t]ch of [preparing] part two at the end of April,”

but lockdowns for “almost all of May” derailed his progress. Id. at 4. “[I]n an abundance of

caution,” however, King “mail[ed] what [he had—that is, “part two”] with some of the exhibits

to prove [he was] not slacking.” Id. King attached twenty-six pages of a document captioned

“Part Two Of Plaintiff’s Opposition . . . And Motion for Reconsideration of [the Court’s March

2017 Order] And Plaintiff’s Cross[-]Motion For Summary Judgment.” Id. at 5–30. This

document ends with the note, “To be continued,” presumably alluding to a forthcoming “part

three.” Id. at 30.

On August 3, 2017, the Court asked the Department to indicate “whether [its] counsel . . .

received ‘part one’ of [King’s] opposition” and, if so, the date of receipt. Minute Order (Aug. 3,

2017). The Court also instructed the Department to indicate “the days on which [King] was on

lockdown or otherwise precluded from accessing legal and computing resources” since January

1 The Court authorized the Clerk to docket King’s letter by noting “Okay to file” on its face. The Court did not, however, rule on the timeliness of the attached motion. 2 According to the page numbering, the Court is in receipt of the first three pages of King’s motion for leave to file as well as page five. See Dkt. 52 at 1–4.

5 26, 2017 (the date of the Court’s first request for King’s lockdown statistics). Id. In response,

the Department’s counsel stated that he had “an original copy of ‘part one’” but was “unable to

confirm the date of receipt.” Dkt. 58 at 1. The Department further reported that, for the eight-

month period from January 26 to September 18, 2017 (the day on which the Department

responded), King was on lockdown during the following periods: February 10, 2017 through

February 21, 2017; April 19, 2017 through April 25, 2017; May 6, 2017 through May 29, 2017;

June 22, 2017 through June 26, 2016; and August 8, 2017 through August 14, 2017. Dkt. 58-1 at

1–2 (Horikawa Decl. ¶¶ 3–4, 7). Thus, for the sixty days between January 26, 2017, when

King’s opposition and cross-motion were due, and March 28, 2017, when the Court issued its

Memorandum Opinion and Order, King was on lockdown for only 19 days.

II. ANALYSIS

King’s late submission of “part one” of his combined opposition and cross-motion,

subsequent motion for leave to file “part two” of his motion out of time, and motion for

reconsideration require that the Court address two issues. First, has King established “good

cause” for failing to file his combined opposition and cross-motion in a timely manner? Second,

has he shown that reconsideration of the Court’s March 28, 2017 Memorandum Opinion and

Order is warranted? The Court considers each of these issues in turn.

A. Motion for Leave to File Out of Time

As an initial matter, there is no doubt that King submitted both “part one” and “part two”

of his combined opposition and cross-motion out of time. After providing King 326 days to file

his opposition, the Court declined to grant King any further extensions. By his own telling,

however, he did not even attempt to mail “part one” to the Court until March 23, 2017—over a

6 year after the Department filed its motion and approximately two months after the final date the

Court set for King to file.

The sole question, accordingly, is whether King has shown “good cause” for missing the

deadline. See Fed. R. Civ. P. 6(b)(1). He has not. King moved for an indefinite extension of

time before his opposition was due, Dkt. 41, and the Court denied that motion for the reasons

previously explained, Dkt. 46. King’s more recent motion was made well after his deadline to

file passed, and it must, accordingly, be assessed under the less generous “excusable neglect”

standard. See Fed. R. Civ. P. 6(b)(1)(B). Although not subject to precise definition, courts are

required to weigh several factors “when determining what kind of neglect will be considered

‘excusable.’” In re Vitamins Antitrust Class Actions,

(D.C. Cir. 2003).

Those factors include “(1) the danger of prejudice to the party opposing the modification, (2) the

length of delay and its potential impact on judicial proceedings, (3) the reason for the delay,

including whether it was within the reasonable control of the movant, and (4) whether the

movant acted in good faith.”

Excusable neglect requires that the Court make “an equitable”

determination after assessing these and another relevant factors. Pioneer Inv. Servs. Co. v.

Burnswick Assocs. Ltd. P’ship,

(1993).

Here, the balance tips overwhelmingly against accepting King’s late filings. King had

more than ample time to file his combined opposition and cross-motion. Indeed, the Court

granted King every reasonable benefit of the doubt in setting, and repeatedly extending, the

briefing schedule. King had 326 days to file, and, even accounting for the periods of time when

he was on lockdown, he had more than 280 days to file. See Dkt. 42-1 at 1–2 (Cowart Decl. ¶ 3);

Dkt. 46 at 3. He was also repeatedly warned about the consequences of failing to respond in

time. King’s contention that he mailed his opposition and cross-motion to the Court a few days

7 before the Court issued its March 28, 2017 Memorandum Opinion and Order is of no moment.

That assertion, even if accepted, does not change the fact that King was still many weeks late and

that his submission was not before the Court when it rendered its decision. Moreover, granting

King leave to file now would substantially prejudice the Department, would interfere with the

Court’s efficient and timely management of this proceeding, and would undermine the sound

allocation of scarce judicial resources. Fault lies exclusively with King, and the sole excuse that

he offers—that he was on lockdown for extended periods of time—does not withstand scrutiny.

The Court has already explained why the lockdowns that occurred before January 26, 2017 did

not justify the extension that King sought. See Dkt. 46 at 3–4. The same rationale extends to his

more recent contentions. In King’s May 11, 2017 letter, for example, he blames his tardiness in

submitting “part two” on “extended lockdown[s]” in “March and April and . . . May.” Dkt. 50 at

3. But according to the Department, King’s facility was not locked down at all in March, and it

was locked down for just one week in April. 3 Dkt. 58-1 at 2–3 (Horikawa Decl. ¶ 4).

The Court, therefore, concludes that King has failed to carry his burden of showing

excusable neglect for his failure to meet the Court’s firm January 23, 2017 deadline for filing his

opposition. Accordingly, the Court will deny King leave to file “part one” of this combined

opposition and cross-motion, Dkt. 50, and, likewise, will deny his motion for leave to file “part

two,” Dkt. 52 at 1–4.

B. Motion for Reconsideration

This, then, leaves King’s motion for reconsideration of the Court’s March 28, 2017

Memorandum Opinion and Order. Dkt. 52 at 5–66. Because that opinion “adjudicate[d] fewer

3 Although the institution did go on lockdown for an extended period of time in May (from May 6 to May 29, 2017), Dkt. 58-1 at 2–3 (Horikawa Decl. ¶ 4), King could not have known that that would turn out to be the case when he wrote his letter on May 11.

8 than all the claims” asserted in King’s complaint, it is interlocutory in nature. Fed. R. Civ. P.

54(b). Accordingly, King’s motion must be “treated as filed under Rule 54(b).” Cobell v.

Jewell,

(D.C. Cir. 2015). Rule 54(b) “reflect[s] the ‘inherent power of the

rendering district court to afford such relief from interlocutory judgments as justice requires.’”

at 25 (quoting Greene v. Union Mut. Life Ins. Co. of Am.,

(1st Cir. 1985)).

“Considerations a court may take into account under the ‘as justice requires’ standard include

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 Insts. of

Health,

(D.D.C. 2008). Although the judgment whether to reconsider a

decision lies within the Court’s discretion, considerations of judicial economy and the obligation

of the courts “to secure the just, speedy, and inexpensive determination of every action and

proceeding,” Fed. R. Civ. P. 1, require “good reason” before reopening matters once resolved. In

Def. of Animals,

.

For the same reasons discussed above, the Court concludes that King has failed to carry

his burden of showing that there is “good reason” to reconsider the Court’s March 28, 2017

Memorandum Opinion and Order. King raises various substantive responses to the

Department’s motion for summary judgment, including challenges to the adequacy of the

Department’s responses to his FOIA request. He fails to offer any plausible explanation,

however, for why he could not have previously raised these contentions. He has not identified

any factual development that occurred after the Court issued its decision on the Department’s

motion, nor has he pointed to any intervening change in the law. As a result, there is no

discernible difference between the documents King seeks to file out of time and his motion for

9 reconsideration; they are one and the same, raising identical arguments directed solely to the

merits of summary judgment. In other words, after disregarding the firm deadline set by the

Court, King now asks that the Court permit him to file his combined opposition and cross-motion

months late under the guise of a motion for reconsideration. Permitting reconsideration under

these circumstances would invite litigants to ignore the schedule set by the Court and to proceed

on whatever timeline that happens to suit the litigant.

The Court will, accordingly, deny King’s motion for reconsideration.

CONCLUSION

For the above reasons, it is hereby ORDERED that King is DENIED leave to file “part

one” of his opposition and cross-motion for summary judgment, Dkt. 50; and it is further

ORDERED that Plaintiff’s motion for leave to file “part two” of his opposition and

cross-motion for summary judgment, Dkt. 52 at 1–4, is DENIED; and it is further

ORDERED that Plaintiff’s motion for reconsideration, Dkt. 52 at 5–66, is DENIED.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: November 10, 2017

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