UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CATO INSTITUTE,

Plaintiff, v. Civil Action No. 20-3338 (JEB)

FEDERAL BUREAU OF INVESTIGATION, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Cato Institute submitted a Freedom of Information Act request seeking Federal

Bureau of Investigation records regarding itself. After obtaining fewer documents than it hoped

for, Cato sued, challenging in part the adequacy of the FBI’s search for such documents. The

Court granted summary judgment for the Bureau, concluding based on two FBI declarations that

a search of its Central Records System (CRS) was sufficient. Cato then appealed that decision.

Now, during the pendency of that appeal, having belatedly located a seemingly contradictory

FBI declaration about CRS in another FOIA case, Cato returns to this Court seeking relief from

judgment. In an ironic twist, the critical question at this juncture is whether Cato was

sufficiently diligent in its search for other FBI declarations so as to render its find “newly

discovered” under Federal Rule of Civil Procedure 60(b)(2). Persuaded that this is the case and

that such evidence would have changed the outcome at summary judgment, the Court concludes

that it would grant the Motion upon the return of jurisdiction from the D.C. Circuit.

1 I. Background

The Court described the underlying FOIA dispute in its previous Opinion granting

summary judgment to the FBI. Cato Inst. v. FBI,

, 17–18 (D.D.C. 2022). It

thus retreads that familiar ground only briefly before moving to the facts underlying the instant

Motion.

In this suit, Plaintiff sought to enforce its FOIA request to the FBI for “any records

regarding the Cato Institute.” ECF No. 26-4 (Def. SMF), ¶ 1. Despite Cato’s request that it

search certain field offices and databases, see

the Bureau determined that its Central Records

System was the system “where all records responsive to Plaintiff’s request would reasonably be

found.” ECF No. 30-1 (Second Declaration of Michael G. Seidel), ¶ 5. According to FBI

Declarant Michael G. Seidel, Section Chief of the Bureau’s Record/Information Dissemination

Section, the CRS database “spans the entire FBI organization and encompasses the records of

FBIHQ, FBI field offices, and FBI legal attaché offices (‘legats’) worldwide.” ECF No. 26-1

(First Declaration of Michael G. Seidel), ¶ 12. Specifically, Seidel attested, it houses

“information about individuals, organizations, and other subjects of investigative interest for

future retrieval.” Id., ¶ 29. After searching CRS, the FBI produced 78 responsive pages to Cato

and withheld another 88. See ECF No. 26-2 (Exhibits to Def. MSJ) at 15–17 (Exemption Index).

Following unsuccessful attempts to resolve the case, the parties cross-moved for

summary judgment. See ECF Nos. 25 (Joint Status Report), 26 (FBI MSJ), 27 (Cato MSJ). Cato

argued in relevant part that the FBI was required to search beyond CRS, which it believed would

not return all relevant records because some might not have been properly indexed there. Cato

Inst., 638 F. Supp. 3d at 21. The FBI’s two Seidel Declarations nonetheless convinced the Court

that its CRS search was adequate. Id. at 20–21. Noting that “the agency began with the database

2 most likely to contain the information requested, see 2d Seidel Decl., ¶ 5, and then, upon the

discovery of leads that pointed to records outside of CRS, searched those as well,” the Court

ruled that the Bureau had “met its burden to follow all leads and clearly explain its decisions

about the scope of its final search.” Id. Cato appealed that decision, and the case is now pending

in front of the D.C. Circuit. See ECF No. 36 (Notice of Appeal).

In the process of appealing, Plaintiff came across evidence it had not been aware of

during summary-judgment briefing. Its discovery was prompted by the D.C. Circuit’s opinion in

Watkins Law & Advocacy, PLLC v. DOJ,

(D.C. Cir. 2023), where one of the issues

was whether a CRS search would uncover “documents not specifically tied to an FBI

investigation.”

. In that case, Seidel’s predecessor, David M. Hardy, declared that a

search of CRS — in his words, “an extensive system of records consisting of applicant,

investigative, intelligence, personnel, administrative, and general files” — was “not likely to

identify all the responsive records” because the request at issue included “memorandums,

policies, and other communication-related documents not specifically tied to an FBI

investigation.” ECF No. 40 (Mot. for Relief), Exh. 1 (David M. Hardy Decl.), ¶¶ 23, 31.

Although the Hardy Declaration had been filed in the underlying Watkins district-court litigation

in 2018 in front of Judge Amy Berman Jackson, years before this Court’s 2022 summary-

judgment decision in the present case, Watkins Law & Advoc., PLLC v. U.S. Dep’t of Veterans

Affs., No. 17-1974, ECF No. 20-5 (D.D.C. Dec. 10, 2018), Cato was unaware of it at the time

because the district-court decision in Watkins did not reference Hardy’s statements or even CRS.

Watkins,

(D.D.C. 2019); Mot. at 5. With the Hardy Declaration now in hand,

and believing it stands in tension with the Seidel Declarations, Cato asks the Court to revisit its

summary-judgment ruling.

3 II. Legal Standard

Federal Rule of Civil Procedure 60(b) governs the vacatur of judgments. As relevant

here, it permits a court to “relieve a party or its legal representative from a final judgment, order,

or proceeding for the following reasons: . . . (2) newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to move for a new trial under Rule 59(b),” and

“(3) fraud . . . , misrepresentation, or misconduct by an opposing party.”

Courts, although not the D.C. Circuit itself, have applied a four-factor test to determine if

Rule 60(b)(2) is satisfied:

The moving party must demonstrate that: (1) the newly discovered evidence is of facts that existed at the time of trial or merits proceeding; (2) the party seeking relief was justifiably ignorant of the evidence despite due diligence; (3) the evidence is admissible and is of such importance that it probably would have changed the outcome; and (4) the evidence is not merely cumulative or impeaching.

Jordan v. DOL,

, 450 (D.D.C. 2019) (cleaned up); see also 11 C. Wright, A.

Miller & M. Kane, Federal Practice & Procedure § 2859 (3d ed.) (2023 update) (collecting cases

employing standard). To obtain relief under Rule 60(b)(3), conversely, a movant must

demonstrate that the “fraud prevented him or her from fully and fairly presenting his or her case,

and that the fraud is attributable to the party or, at least, to counsel.” Green v. Am. Fed. of Labor

& Congress of Indus. Orgs.,

(D.D.C. 2011) (citation and internal

quotation marks omitted).

In this case, an appeal has been filed, which “divests the district court of control over

those aspects of the case involved in the appeal.” United States v. DeFries,

(D.C. Cir. 1997) (quoting Griggs v. Provident Consumer Discount Co.,

(1982)).

“[A]lthough a district court does not have jurisdiction to grant a Rule 60(b) motion while the

4 appeal is pending, it does have authority to deny such a motion while the appeal is pending.”

LaRouche v. U.S. Dep’t of Treasury,

(D.D.C. 2000). In addition, a

district court may “indicate[] that it will grant relief,” at which point “the appellant may move

the appellate court for a remand in order that relief may be granted.” Hoai v. Vo,

(D.C. Cir. 1991).

III. Analysis

Of the factors guiding a Rule 60(b)(2) analysis, the FBI wisely contests only two: (1)

whether the publicly available Hardy Declaration can be considered “newly discovered”

evidence about which Cato was reasonably unaware and (2) whether that evidence would have

changed the outcome at summary judgment. The Court will address those disputed factors in

turn. As Cato’s Rule 60(b)(2) theory prevails, the Court does not go on to consider its thornier

Rule 60(b)(3) argument.

A. Due Diligence

Start with whether Cato should have found the Hardy Declaration during summary-

judgment proceedings. The FBI synthesizes from the caselaw the following principle: “Rule

60(b)(2) motions based on publicly available evidence,” including documents on court dockets,

are nonstarters. See ECF No. 41 (Gov’t Resp.) at 6. Because the Hardy Declaration was

available on PACER when the parties briefed summary judgment, the FBI asserts that it cannot

count as “newly discovered” evidence about which Cato was justifiably ignorant.

at 5–6.

This rule, Cato retorts, would impose an obligation on parties to read every document that exists

on PACER — or at least every document in the more than 1,000 FOIA cases against the FBI on

PACER. See ECF No. 42 (Pl. Reply) at 3–4. Plaintiff submits that due diligence demands far

less — namely, a thorough review of court decisions to determine which cases might have

5 relevant documents on the docket, followed by a PACER search in just those cases. Id. at 6.

Cato represents that this is the method it used, id., and the Court has no reason to question that

claim.

Courts do not speak with one voice on whether Rule 60(b)(2) motions must be dismissed

when premised on publicly available information. Some appear to consider such motions

categorically unavailing irrespective of whether the movant exercised due diligence. See, e.g.,

Scutieri v. Paige,

(11th Cir. 1987) (“Evidence that is contained in the public

records at the time of trial cannot be considered newly discovered evidence.”); Int’l Ctr. for

Tech. Assessment v. Leavitt,

(D.D.C. 2007) (same); Legion Constr.,

Inc. v. Gibson,

(D.D.C. 2015) (same); Peter E. Scapiro, P.A. v. Wells Fargo

Bank, N.A.,

, at *2 (S.D. Fla. Oct. 7, 2019) (treating public availability as

determinative). These courts apparently consider litigants to be constructively on notice of

documents accessible by the public such that those documents cannot qualify as “newly

discovered.” See Strickland v. Thelman,

(Fla. Ct. App. 1995) (relying on

Scutieri and noting that parties “may be ‘charged’ with constructive notice” of public court

document, though they lacked actual notice).

Other courts take a slightly less draconian position, viewing the public availability of

information as an often conclusive indication that the movant could have discovered the

information with due diligence, but leaving room for other factors to sway the outcome. See,

e.g., Music Rsch., Inc. v. Vanguard Recording Soc., Inc.,

, 196 (2d Cir. 1976)

(concluding that “record publicly released . . . three months before trial began” was “hardly the

type of evidence which with due diligence the appellants could not have discovered”); Gray v.

Staley,

(D.D.C. 2017) (suggesting that short of explanation for why plaintiff

6 was unable to obtain publicly available property records, Rule 60(b)(2) motion failed); Presidio

Components, Inc. v. Am. Tech. Ceramics Corp.,

, at *2 (S.D. Cal. Oct. 26,

2010) (finding that publication was not “readily available to the public such that [movant] could

have discovered it upon a diligent search of the internet”); Gleason v. Jansen,

(7th Cir. 2018) (rejecting due-diligence argument concerning public information not because

irrelevant, but because movant was made aware of docket in question by prior court order);

O’Bryan v. Consol Energy, Inc.,

, at *1–2 (E.D. Ky. Oct. 14, 2010) (rejecting

motion based on newly discovered information about expert witness because it was contained in

“decisions [that] were publicly available and easily discovered by an online search”) (emphasis

added); cf. United States v. Stone,

, 8 (D.D.C. 2020) (social-media posts not

newly discovered under analogous Federal Rule of Criminal Procedure because “exercise of due

diligence” would have revealed them, as they were “a few clicks of a mouse away”).

The D.C. Circuit has unfortunately not provided any guidance in navigating this

conceptual confusion. See Duarte v. Nolan,

, at *1 & n.1 (D.C. Cir. Apr. 18,

2017) (taking “no position” on whether “public records” constitute newly discovered evidence

within meaning of Rule 60(b)(2)). The Court, thus left to its own devices, concludes that the

latter of the approaches detailed above represents the wiser. It realizes that its ruling diverges

from others in this district, but many of those did not engage in a detailed analysis of the issue.

In any event, the public availability of documents proffered in support of a Rule 60(b)(2)

motion is best considered a factor in the due-diligence analysis, not an absolute bar to relief. A

rule charging litigants with knowledge of every public document stowed away in a long-

forgotten file cabinet or available only in extensive databases, some of which may be difficult

and costly to navigate, sets expectations too high. Indeed, the Rule asks only “reasonable

7 diligence” of litigants’ research; it creates no stricter standard for any particular category of

information, including publicly accessible information. See Fed. R. Civ. Pro. 60(b)(2)

(permitting relief based on “newly discovered evidence that, with reasonable diligence, could not

have been discovered” earlier). The Court thus moves on to a fuller due-diligence analysis rather

than relying on a categorical approach.

Cato has shown that ordinary diligence here would not have turned up the Hardy

Declaration. Of course, that Declaration was not buried in the undigitized files of some far-flung

archive; it was posted for all to see on an electronic court docket. Still, the Court is satisfied that

due diligence did not call for an impractical docket-by-docket search of all thousand-plus FBI

FOIA cases for evidence like the Hardy Declaration, nor did it call for a review of the Watkins

docket in particular. See Presidio,

, at *2 (finding that movant exercised due

diligence because newly discovered document not listed in first 100 Google-search results and

therefore not “readily available” to public). PACER’s lack of a text-based search for keywords

or the like, moreover, made a more targeted approach impossible.

As for Watkins, the district court there did not explicitly reference CRS or otherwise

delve into the specifics of the FBI’s search in its summary-judgment decision. See Watkins, 412

F. Supp. 3d at 117–18 (mentioning only FBI’s search of “certain databases” in concluding

adequate steps taken). Cato thus had no reason to think anything on that docket would be helpful

to its argument concerning the sufficiency of a CRS search. Cf. Gleason,

(movant should have discovered new evidence earlier because case in question was cited in prior

court order). In sum, despite its presence on a publicly accessible court docket, the Hardy

Declaration was not the kind of evidence that a reasonably diligent search would have revealed.

8 B. Changed Outcome

Next up is whether the Hardy Declaration is the game-changing document Cato claims.

As the Court noted in its original decision, to satisfy its burden at summary judgment, an agency

must “show that it made a good faith effort to conduct a search for the requested records, using

methods which can be reasonably expected to produce the information requested.” Cato Inst.,

638 F. Supp. 3d at 19 (quoting Campbell v. U.S. Dep’t of Just.,

(D.C. Cir.

1998)). “If, however, the record leaves substantial doubt as to the sufficiency of the search,

summary judgment for the agency is not proper.”

(quoting Truitt v. Dep’t of State,

(D.C. Cir. 1990)).

The Hardy Declaration introduces serious doubt about the adequacy of the Bureau’s

search in this case. In its prior decision, the Court relied heavily on Seidel’s complementary

representations that: (1) “all records responsive to Plaintiff’s request would reasonably be found”

in the CRS database, see 2d Seidel Decl., ¶ 5 (emphasis added), and (2) “searches of any other

locations would be unduly burdensome in nature, duplicative, and unlikely to yield results not

found via the CRS index search.” 1st Seidel Decl., ¶ 33; see Cato Inst., 638 F. Supp. 3d at 20.

The Hardy Declaration, however, illuminates a key deficiency of CRS searches, thus calling

those blanket assertions into question. It states that “a search of the CRS is not likely to identify

all the responsive records,” including “memorandums, policies, and other communication-related

documents not specifically tied to an FBI investigation.” Hardy Decl., ¶ 31 (emphasis added).

That limitation raises significant questions about whether a CRS search would have located “any

records regarding the Cato Institute,” as requested, particularly because Cato explicitly asked for

responsive “memoranda.” ECF No. 26-2 (Exhibits to 1st Seidel Decl.) at 2–3 (FOIA Request)

(emphasis added). Because a FOIA defendant must “aver[ ] that all files likely to contain

9 responsive materials (if such records exist) were searched” to obtain summary judgment,

Oglesby v. U.S. Dep’t of Army,

(D.C. Cir. 1990), Hardy’s statement implying

the contrary likely would have prevented a grant of summary judgment in the FBI’s favor had it

been presented to the Court.

The agency’s contentions to the contrary do not persuade. It first tries its hand at

explaining why the Hardy Declaration has no bearing on the kind of request at issue here. The

request in Watkins involved “memorandums, policies, and other communication-related

documents” on specific topics. See Hardy Decl., ¶ 31; id., ¶ 5. That request was vastly different

from Plaintiff’s, the agency says, which focused on a “particular subject” — namely, Cato itself.

See Gov’t Resp. at 6–7. The FBI’s characterization is difficult to square with the breadth of

Cato’s request, which, to reiterate, swept in “any records” regarding itself and specifically sought

“memoranda.” FOIA Request at 2–3. In any event, the FBI’s proposed dichotomy between

subject-specific requests and those seeking documents untied to investigations of specific

subjects seems to be a false one: Cato requested all FBI documents naming it, not just those

linked to investigative work.

The FBI also accuses Cato of misreading the Hardy Declaration to mean that CRS

includes only investigative documents. Defendant cites Hardy’s description of CRS as

containing “records consisting of applicant, . . . intelligence, personnel, administrative, and

general files” as proof to the contrary. See Gov’t Resp. at 7 (quoting Hardy Decl., ¶ 23). As

Cato explains, however, it is not the contents of CRS that it is concerned with, but rather whether

an index search of CRS would uncover non-investigative documents such as policies,

memoranda, and communications unrelated to a specific FBI investigation, a category of

documents that fall within the scope of its request. See Pl. Reply at 9–10. On that question, the

10 Hardy Declaration is clear that a CRS search falls short. See Hardy Decl., ¶ 31. Both of the

agency’s arguments therefore come to naught. Because the Hardy Declaration intimates that a

portion of Cato’s request could not be fulfilled by looking to CRS alone and the FBI never

asserts any change in the scope of CRS since that Declaration, it would have altered the outcome

at summary judgment.

IV. Conclusion

The Court will, accordingly, issue a Notice indicating that it would grant Cato’s Motion

for Relief from Judgment upon the return of jurisdiction from the D.C. Circuit.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: January 9, 2024

11