                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

___________________________________
                                   :
DONVILLE JAMES,                    :
                                   :
          Plaintiff,               :
                                   :
                v.                 :
                                   : Civil Action No. 06-1951 (GK)
UNITED STATES SECRET SERVICE and   :
FEDERAL BUREAU OF INVESTIGATION,   :
DEPARTMENT OF JUSTICE,             :
                                   :
          Defendants.              :
___________________________________:

                          MEMORANDUM OPINION

     Plaintiff Donville James, proceeding pro se, brought this

action pursuant to the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552, against Defendants United States Secret Service,

Department of Homeland Security (“Secret Service”) and Federal

Bureau of Investigation, Department of Justice (“FBI”). On July 23,

2007, the Court granted Defendants’ Motion for Summary Judgment.

James v. United States Secret Serv., No. 06-cv-1951, 2007 WL

2111034 (D.D.C. July 23, 2007). This matter is presently before the

Court on Plaintiff’s Motion for Declaratory Judgment and Injunctive

Relief Pursuant to Fed. R. Civ. P. 60(b)(6) [Dkt. No. 16]. Upon

consideration of the Motion, Opposition, and Reply, and the entire

record herein, Plaintiff’s Motion is denied.
I. Background

      On November 15, 2006, Plaintiff filed a Complaint in this

Court challenging Defendants’ disposition of his September 15, 2005

FOIA requests. The Court granted summary judgment for Defendants on

the   grounds   that   James   failed   to   exhaust   his   administrative

remedies for the FBI FOIA requests, and that the Secret Service

conducted a proper search and justifiably withheld the records

requested by James under FOIA’s statutory exemptions.

      James now moves for relief from the Order granting summary

judgment in order to obtain access to the records withheld by the

Secret Service under FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A).

Specifically, James seeks the contents of a conversation recorded

on March 25, 2002 and allegedly maintained in the Secret Service’s

Chicago Field Office under investigative file number 1544, serial

number 201-2002-CE-000442. Mot. at 3-7.

      Exemption 7(A) shields from disclosure “records or information

compiled for law enforcement purposes, but only to the extent that

the production of such records could ... interfere with enforcement

proceedings.” 5 U.S.C. § 552(b)(7)(A) (2009). The Secret Service

invoked Exemption 7(A) for the materials in dispute because they

were related to the agency’s criminal investigation of James, which

remained open until James’ conviction and the conclusion of all

appeals. James’ 1992 conviction was on appeal before the Court of

Appeals for the Seventh Circuit throughout the litigation in this


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Court. Concluding that James’ conviction was therefore not yet

final, the Court found on summary judgment that the records were

justifiably withheld under Exemption 7(A). James, 2007 WL 2111034,

at *4-5.

     On    June   4,    2007,     the   Seventh     Circuit    affirmed   James’

conviction. United States v. James, 487 F.3d 518 (7th Cir. 2007).

In April of 2009, James filed a new FOIA request with the Secret

Service for the materials exempted under 7(A). The Department of

Homeland Security responded by disclosing materials on August 19,

2009, which James alleges were unresponsive. James timely appealed

the agency’s response pursuant to 5 U.S.C. § 552(a)(b)(A)(ii), and

the agency responded to his appeal by letter dated November 20,

2009. According        to   its   letter,     the   agency   had   destroyed the

materials requested on November 26, 2007. James contends that the

destruction of the recorded conversations was in violation of 18

U.S.C. § 2518(8)(a), which provides that recordings of the contents

of any intercepted wire, oral, or electronic communication “shall

not be destroyed except upon an order of the issuing or denying

judge and in any event shall be kept for ten years.”

     In light of these changed circumstances, James moves under

Fed. R. Civ. P. 60(b)(6) for relief from the July 23, 2007 Order

granting summary judgment for Defendants. In addition, James seeks

declaratory and injunctive relief under 5 U.S.C. § 552(a)(4)(B) and




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an order appointing special counsel to investigate Defendants’

alleged violation of 18 U.S.C. § 2518(8)(a).

II. Standard of Review

     Rule 60(b) provides that, “[o]n motion and just terms, the

court may relieve a party or its legal representative from a final

judgment, order, or proceeding.” Fed. R. Civ. P. 60(b) (2009). The

Rule establishes six reasons which may justify relief from a final

judgment.   Rule    60(b)(6),    upon   which    Plaintiff      relies,      is   a

catch-all provision providing that a motion for modification may be

made for “any other reason that justifies relief.” Id.

     The    Supreme   Court     has   held    that     only    exceptional        or

extraordinary      circumstances      can    justify    relief       under   this

subsection of Rule 60. Ackermann v. United States, 340 U.S. 193,

199-202, 71 S.Ct. 209, 95 L.Ed. 207 (1950). Our Court of Appeals

has further stated that the Rule“should be only sparingly used.”

Twelve John Does v. District of Columbia, 841 F.2d 1133, 1140 (D.C.

Cir. 1988) (quoting Good Luck Nursing Home, Inc. v. Harris, 636

F.2d 572, 577 (D.C. Cir. 1980)).

III. Analysis

     Defendants argue that James has failed to plead or prove the

extraordinary circumstances required to justify relief under Rule

60(b)(6).   Defendants    contend     that    James    seeks    to    improperly

challenge the disposition of his April 15, 2009 FOIA request by




                                      -4-
reopening his action challenging the disposition of his September

15, 2005 requests, instead of filing a new complaint.

     Defendants are correct. Reconsideration under Rule 60(b)(6) is

proper “[w]hen a party timely presents a previously undisclosed

fact so central to the litigation that it shows the initial

judgment to have been manifestly unjust.” Good Luck Nursing Home,

636 F.2d at 577. Here, however, James fails to present any new

facts or arguments showing that the Court’s July 23, 2007 judgment

upholding Defendants’ disposition of his September 15, 2005 FOIA

requests was unjust.1 Instead, he now argues that the agency

wrongfully denied his April 15, 2009 FOIA request, which was, of

course, not challenged in the original Complaint.




     1
          The case that Plaintiff principally relies upon to
support his argument that the finalization of his conviction is an
“extraordinary circumstance” justifying relief is unpersuasive. In
Amesco Exports v. Assoc. Aircraft Mfg. & Sales, 87 F.Supp.2d 1013
(C.D. Cal. 1997), the court granted summary judgment to the
defendants on a breach of contract claim because the plaintiffs
lacked corporate status, and thus lacked capacity to sue. At the
time of summary judgment, unbeknownst to the court, plaintiffs were
engaged in efforts to revive their corporate status, which were
ultimately successful. Plaintiffs moved under Rule 60(b) based upon
their revived status, and the court concluded that the “new”
evidence justified relief. However, there is one critical
distinction between Amesco and the present case: in Amesco, the
court’s conclusion was based on the undisputed premise that “the
effect of the revivor is to retroactively validate the complaint.”
Id. at 1015. In contrast, the changed circumstances surrounding the
finality of James’ conviction do not retroactively invalidate the
Secret Service’s withholding under Exemption 7(A).

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     The proper vehicle for James’ latest challenge is a new

complaint. Consequently, the Court concludes that Plaintiff has

failed to present the kind of extraordinary circumstances required

under Rule 60(b)(6), and his Motion is denied.

IV. CONCLUSION

     For the reasons set forth above, Plaintiff’s Motion for

Declaratory Judgment and Injunctive Relief Pursuant to Fed. R. Civ.

P. 60(b)(6) is denied. An Order will accompany this Memorandum

Opinion.




                               /s/
July 29, 2010                 Gladys Kessler
                              United States District Judge



Copies via ECF to all counsel of record




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