Service Women's Action Network et al v. Defense et al

Filing 41

ORDER denying 36 Motion for Reconsideration. Signed by Judge Stefan R. Underhill on 3/19/2013. (Cherry, H)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SERVICE WOMEN'S ACTION
NETWORK, et al.,
Plaintiffs,

No. 3:11cv1534 (SRU)

v.
UNITED STATES DEPARTMENT OF
DEFENSE and UNITED STATES
DEPARTMENT OF VETERANS
AFFAIRS,
Defendants.
RULING ON MOTION FOR RECONSIDERATION
The Service Women's Action Network, the American Civil Liberties Union, and the
American Civil Liberties Union of Connecticut (collectively, "Plaintiffs") filed a complaint
against the Department of Defense and the Department of Veterans Affairs (collectively
"Defendants"). Plaintiffs' Complaint [doc. # 1] stated two claims under the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552 et seq.: (1) that Defendants' wrongful denial of
requests for fee waivers violated Plaintiffs' rights under FOIA, 5 U.S.C. § 552(a)(4)(A)(ii)(III)
and 5 U.S.C. § 552(a)(4)(A)(iii); and (2) that Defendants' failure to release responsive records
violated Plaintiffs' rights to those records under FOIA, 5 U.S.C. § 552(a)(3)(A). On January 23,
2012, Defendants filed a Motion for Summary Judgment [doc. # 26]. On May 14, 2012, District
Judge Mark R. Kravitz granted the motion [doc. #32]. On June 11, 2012, Plaintiffs filed a
Motion for Reconsideration [doc. # 36]. For the reasons that follow, Plaintiffs' Motion for
Reconsideration is denied.
I.

Background
Service Women's Action Network ("SWAN") is a nonpartisan, nonprofit organization

that supports, defends, and empowers current service women and female veterans through

advocacy initiatives and community programs. The American Civil Liberties Union ("ACLU") is
a national, nonpartisan public interest organization of more than 500,000 members, dedicated to
protecting the constitutional and civil rights of individuals. In recent years, the ACLU Women's
Rights Project has worked at the local, state, and national levels to ensure governmental
accountability for violence against women and girls through litigation, policy advocacy, and
public education. The ACLU of Connecticut is a non-profit, non-partisan membership
organization dedicated to protecting individual civil rights and the principles of individual liberty
embodied in the United States and Connecticut Constitutions.
The U.S. Department of Defense ("DoD") is the federal agency responsible for
coordinating and supervising government activity relating directly to national security and the
U.S. armed forces. The U.S. Department of Veterans Affairs ("VA") is the federal agency
responsible for helping veterans by providing certain benefits and services.
In letters dated June 24, 2011, Plaintiffs submitted FOIA requests to five different DoD
offices: the Department of the Navy, the Office of the Inspector General, the Department of the
Air Force, the Department of the Army, and the Commandant of the Marine Corps.
By July 26, 2011, Plaintiffs received denials of fee waivers regarding their requested
information from each DoD office (including four from four Army offices: the U.S. Army Crime
Records Center, the U.S. Army Medical Command, the Deputy Chief of Staff, G-1, and the
Office of the Clerk of the Court). Each denial categorized Plaintiffs as an "other" requester and
required advance payment of the estimated fees before the agency would further process the
request.

-2-

Plaintiffs claim to have administratively appealed all decisions denying them fee
waivers.1 Plaintiffs challenged the denial of the fee waiver request and "other" classification, but
did not challenge the validity of the fee estimates. By September 26, 2011, all administrative
appeals had been denied.
In letters dated June 24, 2011, Plaintiffs submitted FOIA requests to the Veterans
Benefits Administration ("VBA") and the Board of Veterans Appeals ("BVA"). On July 25,
2011, Plaintiffs received denials of fee waivers from both the VBA and the BVA. Plaintiffs
administratively appealed the VBA and BVA decisions. On September 15, 2011, Plaintiffs
received denials of both appeals.
After Plaintiffs exhausted all administrative remedies, they filed a complaint in this Court
seeking the release of the information requested and the waiver of fees. Defendants' filed a
Motion for Summary Judgment. As part of their Memorandum of Law in Opposition to
Defendants' Motion for Summary Judgment, Plaintiffs claimed that "[s]ince June 2011, [they]
have indicated their willingness to settle their complaint and limit their request to a far smaller
number of key documents." Pls.'s Mem. of Law. [doc. # 27] at 33. Plaintiffs argued that their
narrower request was "estimated to be less than two percent of what Defendants currently
suggest it is" and therefore Defendants overstated their burden. Id. at 34, 36. Judge Kravitz
granted the Motion for Summary Judgment, concluding that although Plaintiffs are entitled to the
public interest fee waiver, Plaintiffs' original request would have imposed an unreasonable
burden on Defendants. Judge Kravitz further stated that he could not "evaluate the
reasonableness of a limited fee waiver or Plaintiffs' modified request on the [current] record" but

1

Defendants maintain that Plaintiffs did not exhaust their administrative options with
regard to the responses from the Army Deputy Chief of Staff, G-1, or the Army Clerk of Court. I
need not decide the exhaustion issue.
-3-

"Plaintiffs may file revised FOIA requests to obtain the information they seek." Mem. of Dec.
[doc. # 32] at 12. Plaintiffs filed a Motion for Reconsideration claiming that the Court should
have either reviewed the reasonableness of the narrowed request based on supplemental briefing
or remanded the action to the administrative agency to evaluate the reasonableness. See Mot. for
Reconsideration [doc. # 36] at 1.
II.

Standard of Review
The standard for granting a motion for reconsideration is strict; motions for

reconsideration “will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked – matters, in other words, that might be reasonably
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). Motions for reconsideration will not be granted where the party merely
seeks to relitigate an issue that has already been decided. Id. The three major grounds for
granting a motion for reconsideration are: (1) an intervening change of controlling law, (2) the
availability of new evidence, or (3) the need to correct a clear error or prevent manifest injustice.
Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citing
18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practices & Procedure §
4478).
III.

Discussion
Plaintiffs give three reasons why their motion should be granted. First, Plaintiffs contend

that the "Court's judgment conflicts with prior decisions establishing that requesters may narrow
their FOIA request after submission without having to submit a new request." Pls.'s Mem. [doc. #
36-1] at 4. Second, Congress statutorily allows a requester to modify its request. Id. And third,
Plaintiffs argue that it is in the interest of judicial economy for the Court to rule on the
burdensomeness of the narrowed request. Id. at 7.
-4-

None of these arguments satisfies the standard for granting a motion for reconsideration.
Plaintiffs do not cite to an intervening change of controlling law or the availability of new
evidence. Plaintiffs try to frame their argument as both clear error and manifest injustice, but fail
to succeed on either.
First, Judge Kravitz did not overlook controlling law or material facts in his original
ruling. Plaintiffs have been unable to cite to any opinions or statutes that mandate a district court
to assess the reasonableness of a narrower search proposed by a FOIA requester during litigation.
Under the FOIA statute, requesters may modify their requests after submission. See 5 U.S.C. §
552(a)(6)(B)(ii) ("The agency shall . . . provide the person an opportunity to limit the scope of
the request."). But no statute requires a court to allow FOIA modifications during the course of
litigation. Opinions cited by Plaintiffs also do not support Plaintiffs' argument. In People for Am.
Way Found. v. United States Dep't of Justice, the government argued that the court could only
consider the plaintiff's initial FOIA request because it never accepted the plaintiff's offer to
narrow its request. 451 F. Supp. 2d 6, 11 (D.D.C. 2006). The court disagreed with the
"government's suggestion that [the government's] consent is required to effectuate a requester's
reduction of its own FOIA request" and that the modification never became effective. Id. at 12.
"Significantly, the government was a signatory to several Joint Status Reports during the course
of this litigation, in which the parties represented—unequivocally—that the FOIA request had
been narrowed . . . ." Id. The court considered the reasonableness of the narrowed search because
"the government . . . addressed the narrowed FOIA request . . . ." 451 F. Supp. 2d 6, 12 (D.D.C.
2006).
Here, the Plaintiffs did not "unequivocally" narrow their request. Instead, Plaintiffs
merely "indicated their willingness to settle their complaint and limit their request to a far smaller

-5-

number of key documents." Pls.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. [doc. # 27]
at 33 (emphasis added). See also Pls.'s Ex. G. Letter to Jonathan G. Cooper dated December 29,
2011 [doc. # 27-2] at 1 ("We write to propose a settlement of Plaintiff's claims against the Army,
Navy, Marines, and Air Force . . . This correspondence constitutes a confidential settlement
communication and is inadmissible in any proceeding pursuant to Fed. R. Evid. 408."). But
Plaintiffs did not withdraw or amend their original FOIA request or seek leave to amend their
Complaint based on that request. Furthermore, Judge Kravitz had no record to rely on to assess
the reasonableness of the proposed narrowed request—the administrative agency did not
determine the issue in the first instance and the government did not brief the issue during the
litigation.
Plaintiffs also rely upon Trans-Pac Policing Agreement v. United States Customs Serv.,
177 F.3d 1022 (D.C. Cir. 1999), but in that case the Circuit Court remanded because the District
Court did not make a segregability finding as required by 5 U.S.C. § 522(b). See 5 U.S.C. §
522(b) ("Any reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt under this subsection.").
Exemptions and segregability are not at issue in this case.
Second, the decision has not resulted in manifest injustice. It appears that Plaintiffs tried
to litigate the merits of their settlement proposal, which was rejected, without accepting the
disadvantages of formally narrowing their request, i.e., relinquishing their claim to a broader set
of documents. Judge Kravitz correctly granted summary judgment on the only request actually
before him—the initial, unduly burdensome request. Although Plaintiffs may prefer not to have
to file a third FOIA request, it is too late to amend the request at issue here. Perceived judicial
economy is not a sufficient reason to grant the motion for reconsideration.

-6-

IV.

Conclusion
For the reasons stated above, the Plaintiffs' Motion for Reconsideration [doc. # 36] is

denied.
It is so ordered.
Dated at Bridgeport, Connecticut, this 19th day of March 2013.

/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge

-7-