                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA



KHALID AWAN,                                )
                                            )
              Plaintiff,                    )
                                            )
       v.                                   )       Civil Action No. 10-1100 (BAH)
                                            )
UNITED STATES                               )
DEPARTMENT OF JUSTICE et al.,               )
                                            )
              Defendants.                   )


                                  MEMORANDUM OPINION

       On May 22, 2013, the Court granted in part and deferred in part Defendants’ Motion for

Summary Judgment in this action brought under the Freedom of Information Act (“FOIA”). See

Mem. Op. and Order, ECF No. 64. On January 17, 2014, the Court denied summary judgment to

the defendants on the deferred issue regarding the withholding of a sealed affidavit supporting

a material witness warrant. The defendants were directed to release portions of the document

that were withheld solely under FOIA’s Exemption 3 and to request entry of judgment pursuant

to Federal Rule of Civil Procedure Rule 58(d). Order, ECF No. 73.

       Pending is Defendants’ Request for Reconsideration of Summary Judgment With

Respect to Material Witness Warrant Affidavit, brought pursuant to Federal Rule of Civil

Procedure 54(b), ECF No. 81. The plaintiff has opposed the motion, see Pl.’s Objection in

Response to Def.’s Request for Recon. of Summ. J. With Respect to Material Witness Warrant

Aff., ECF No. 84, and the defendants have replied, ECF No. 86.



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I. RULE 54 STANDARD

       “Denial of a summary judgment motion is an interlocutory order” and “[d]istrict courts

have discretion to entertain successive summary judgment motions on the same (or different)

grounds.” 3 WILLIAM W. SCHWARZER ET AL., FEDERAL CIVIL PROCEDURE BEFORE TRIAL §

14:367 (2013) (emphasis in original). Indeed, a district court may revise any of its interlocutory

decisions “at any time before the entry of a judgment adjudicating all the claims and all the

parties' rights and liabilities.” Fed. R. Civ. P. 54(b); accord Langevine v. District of Columbia, 106

F.3d 1018, 1023 (D.C. Cir. 1997) (“Interlocutory orders are not subject to the law of the case

doctrine and may always be reconsidered prior to final judgment.”). Rule 54(b) “recognizes

[the district court's] inherent power to reconsider an interlocutory order ‘as justice requires.’ ”

Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011) (quoting

Greene v. Union Mut. Life Ins. Co. of Am., 764 F.2d 19, 22–23 (1st Cir. 1985)). To determine

whether “justice requires” reconsideration, a court may consider, among other possible

grounds, whether “a controlling or significant change in the law or facts has occurred since the

submission of the issue to the court.” Act Now to Stop War & End Racism Coal. v. District of

Columbia (“ Act Now ”), 286 F.R.D. 117, 125 (D.D.C. 2012) (quoting Estate of Botvin ex rel. Ellis v.

Islamic Republic of Iran, 772 F. Supp. 2d 218, 223 (D.D.C. 2011)).

II. DISCUSSION

       The Court determined that the defendants had not shown that an order issued by the

Southern District of New York sealing the material witness warrant affidavit prevented

disclosure of the document under the FOIA. See Jan. 17, 2014 Mem. Op. at 11-13 (following

Morgan v. U.S. Dep’t of Justice, 923 F.2d 195 (D.C. Cir. 1991)). Under Morgan, summary


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judgment is warranted in a FOIA case “[i]f the DOJ obtains a clarifying order stating that the seal

prohibits disclosure.” Morgan, 923 F.2d at 198. This is so because the government’s

compliance with such an order is not an improper withholding. See Jan. 17, 2014 Mem. Op. at

10.

       In support of the instant motion to reconsider, the defendants have supplied an order

issued by the Southern District of New York on April 13, 2014, stating that the material witness

warrant application “was sealed with the intent to prohibit its disclosure, pursuant to Fed. R.

Crim. P. 6(e), for as long as the seal remains in effect.” Clarifying Order, ECF No. 81-1. The

plaintiff counters that he is entitled to the document because he was a party to the criminal

action, Pl.’s Opp’n at 2-3, but this argument reflects a basic misunderstanding about the FOIA.

Unlike a “constitutionally compelled disclosure to a single party” during discovery in criminal

litigation, Cottone v. Reno, 193 F.3d 550, 556 (D.C. Cir. 1999), a disclosure of information under

the FOIA is a release not only to the requester but to the public at large. See Clay v. U.S. Dep’t

of Justice, 680 F. Supp. 2d 239, 248 (D.D.C. 2010) (rejecting FOIA requester’s due process

argument “because the FOIA is not a substitute for discovery rules which govern civil and

criminal litigation where ‘different considerations’ are at issue”) (quoting Stonehill v. IRS, 558

F.3d 534, 538 (D.C. Cir. 2009)).

       In light of the recently obtained Clarifying Order, the Court concludes that the

government’s withholding of the material witness warrant affidavit in compliance with the

sealing order does not constitute an improper withholding under the FOIA. Accordingly, the

Court will grant the defendants’ motion for reconsideration, vacate the order directing partial




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release of the material witness warrant affidavit, and enter judgment for the defendants on all

claims. A separate final order accompanies this Memorandum Opinion.

                                                    /s/ Beryl A. Howell
                                                   UNITED STATES DISTRICT JUDGE
DATE:     June 5, 2014




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