White v. Department of Justice et al

Filing 192

MEMORANDUM AND ORDER, denying 180 MOTION for Relief from Judgment as to the Bureau of Prisons and the Bureau of Alcohol, Tobacco, Firearms, and Explosives filed by William A White. Signed by Judge J. Phil Gilbert on 2/18/2021. (jdh)

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM A. WHITE,
Plaintiff,
v.

Case No. 16-cv-948-JPG

DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, UNITED
STATES MARSHALS SERVICE,
FEDERAL BUREAU OF PRISONS and
BUREAU OF ALCOHOL, TOBACCO,
FIREARMS, AND EXPLOSIVES,
Defendants.
MEMORANDUM AND ORDER
Plaintiff William A. White brought this action under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. He alleged that the Federal Bureau of Investigations (“FBI”), the
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), the United States Marshals
Service (“USMS”), and the Federal Bureau of Prisons (“BOP”) did not respond properly to his
requests for information under the FOIA.

The Court entered judgment in favor of the defendant

Department of Justice (“DOJ”) (for and through its agencies named as defendants) on May 19,
2020 (Doc. 144).
This matter comes before the Court now on White’s motion for relief from judgment
pursuant to Federal Rule of Civil Procedure 60(b)(2) and (3) to the extent the Court’s judgment
concerns his FOIA requests to the ATF and BOP.

The Government has responded to the

motion (Doc. 182), and White has replied to that response (Doc. 183).1

1

The Court notes that, in his reply, White makes utterly inappropriate ad hominem attacks on
the DOJ’s counsel. While she has, in the past accused White of misconduct, it is clear that her
allegations are based on her legal judgment, not her personal opinion of White’s character. In

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White’s objection centers on law enforcement’s continued representation that they never
conducted an investigation into White’s involvement in an assassination plot allegedly revealed
to them by an unreliable informant. White points to records released earlier in the case and/or
by other sources under FOIA to assert that the BOP tortured him as part of the investigation and
that the ATF and BOP did not adequately respond to his FOIA requests and were instead
covering up the investigation and committing perjury with respect to that cover-up.

Again, he

charges that it is impossible that the ATF and BOP did not have more responsive records.
It is well settled that Rule 60(b) relief is an extraordinary remedy and is granted only in
exceptional circumstances.

Gonzalez v. Crosby, 545 U. S. 524, 535 (2005); Dolin v.

GlaxoSmithKline LLC, 951 F.3d 882, 891 (7th Cir. 2020). Rule 60(b) allows a court “to
address mistakes attributable to special circumstances and not merely to erroneous applications
of law.” Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995).
The rule authorizes a Court to grant relief from judgment for the specific reasons listed in the
rule but does not authorize action in response to general pleas for relief.
161 F.R.D. 61, 62 (N.D. Ill. 1995).

See Young v. Murphy,

It is also not an appropriate vehicle for addressing simple

legal error, for rehashing old arguments, or for presenting arguments that should have been
raised before the court made its decision.

Russell, 51 F.3d at 749; Rutledge v. United States,

230 F.3d 1041, 1052 (7th Cir. 2000); Young, 161 F.R.D. at 62; In re Oil Spill by “Amoco
Cadiz,” 794 F. Supp. 261, 267 (N.D. Ill. 1992), aff’d, 4 F.3d 997 (7th Cir. 1993) (Table).
Rather, it is a collateral attack on a judgment, and the grounds for that attack must be something
other than an argument that could have been used to obtain reversal on direct appeal.

Kiswani

the future, in this and any other case, the Court will summarily strike any of White’s filings that
contain such inappropriate ad hominem attacks and may not allow him to amend the filing.
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v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 743 (7th Cir. 2009).
Rule 60(b)(2) allows the Court to relieve a party from a final judgment where the movant
presents “newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b)”—that is, no later than 28 days after
entry of judgment.

See Fed. R. Civ. P. 59(b).

Under Rule 60(b)(2), evidence is “new” only if

it was discovered after entry of final judgment.
Cir. 2002).

See Gleash v. Yuswak, 308 F.3d 758, 761 (7th

In addition, the movant must show that the evidence was material, that the movant

exercised due diligence in seeking it out in a timely manner, and that the Court would probably
arrive at a different result.

Fields v. City of Chi., 981 F.3d 534, 554 (7th Cir. 2020).

Rule 60(b)(3) allows the Court to set aside a judgment on the basis of “fraud. . .,
misrepresentation, or misconduct by an opposing party.” A movant seeking relief under this
rule must prove the wrongful conduct by clear and convincing evidence and must show that the
misconduct prevented it from fully and fairly presenting a meritorious claim.

Philos Techs.,

Inc. v. Philos & D, Inc., 802 F.3d 905, 917 (7th Cir. 2015); see Fields, 981 F.3d at 558.
Because the rule is intended to protect the fairness of proceedings, not just to deter or punish
intentional misconduct, it applies also to unintentional misrepresentations.

Fields, 981 F.3d at

558.
White has not presented compelling and extraordinary reasons that justify Rule 60(b)
relief. To begin with, much of the evidence he points to as “new” was filed with the Court
before entry of judgment or with White’s Rule 59(e) motion, clearly not too late for a Rule 59
motion.

Therefore, it is not “new.”

In addition, the Court was unable to locate other evidence

White cites in the record—likely because the Court denied him leave to file some supplemental
evidence in connection with another motion—so White has failed to adequately support his
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arguments based on those documents.
To the extent he asserts the missing documents were produced after entry of judgment
pursuant to FOIA responses to other agencies, he has not established that such evidence was
material in that its consideration by the Court had a reasonable probability of leading to a
different result. On the contrary, from White’s description of the evidence in his Rule 60(b)
motion, it appears likely the documents, like much of the other evidence in this case, would not
support any inference that the ATF or the BOP did not comply with its obligations under the
FOIA, as explained in the Court’s final order in this case (Doc. 143). The Court repeats that the
mere existence of responsive records that were not located in an agency’s search does not, by
itself, show that the agency’s search was unreasonable.

In re Wade, 969 F.2d 241, 249 n. 1 (7th

Cir. 1992) (“The issue is not whether other documents may exist, but rather whether the search
for undisclosed documents was adequate.”).

A FOIA claimant’s speculation that additional

responsive records exists is not enough to overcome an agency’s showing that its search was
adequate. See Ferranti v. ATF, 177 F Supp. 2d. 41, 48 (D.D.C. 2001), aff’d, No. 01-5451, 2002
WL 31189766 (D.C. Cir. Oct. 2, 2002).
Finally, White has not provided clear and convincing evidence that the DOJ perpetrated
any intentional or unintentional fraud or misrepresentation on the Court with respect to its
conclusions about the ATF’s and BOP’s responses to his FOIA requests.

He has not pointed to

any evidence that any action by the DOJ amounted to fraud and prevented him from fully and
fairly presenting his FOIA case, and any assertion otherwise rests solely on speculation.

In

light of the Court’s painstaking review of each of White’s FOIA claims in this case, including its
post-judgment exploration of misrepresentations made in connection with the USMS’s FOIA
response, the Court believes that White has been able to fairly present his case, that the Court has
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correctly assessed the merits of his claims, that it has not been a victim of fraud by the DOJ, and
that White has not established a legitimate basis for relief from judgment.

White may, of

course, make his arguments to the Court of Appeals.
Mentioning the Court of Appeals raises the question of this Court’s jurisdiction to decide
White’s Rule 60(b) motion during the ongoing appeal of the Court’s original judgment—Appeal
No. 21-1229.

Ordinarily, a notice of appeal “divests the district court of its control over those

aspects of the case involved in the appeal.”
U.S. 56, 58 (1982).

Griggs v. Provident Consumer Discount Co., 459

However, a district court continues to have jurisdiction to deny a Rule

60(b) motion and should do so expeditiously if the motion appears to be without merit.

Boyko

v. Anderson, 185 F.3d 672, 674-75 (7th Cir. 1999); see Fed. R. Civ. P. 62.1(a) (“(a) Relief
Pending Appeal.

If a timely motion is made for relief that the court lacks authority to grant

because of an appeal that has been docketed and is pending, the court may . . . (2) deny the
motion. . . .”).
For the foregoing reasons, the Court DENIES White’s motion for relief from judgment
pursuant to Rule 60(b) (Doc. 180).

The Court further WARNS White that, in this and any other

case to which he is a party, the Court will summarily strike any of his filings that contain
inappropriate ad hominem attacks and may not allow him to amend the stricken filing.
IT IS SO ORDERED.
DATED: February 18, 2021
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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