                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


    FIELDING MCGEHEE et al.,

                          Plaintiffs,

                          v.                           Case No. 1:01-cv-01872 (TNM)

    U.S. DEPARTMENT OF JUSTICE,

                          Defendant.


                                    MEMORANDUM OPINION

        In 2001, Plaintiffs Fielding McGehee and Rebecca Moore sued the Department of

Justice, under the Freedom of Information Act (“FOIA”), seeking documents from the Federal

Bureau of Investigation about the infamous Jonestown Massacre.

        In the latest chapter of this decades-old litigation, the Court granted the Department’s

unopposed Motion for Summary Judgment. Before the Court now is the Plaintiffs’ Motion for

Reconsideration. Because the Plaintiffs have not shown that they are entitled to relief, the Court

will deny their Motion.

                                                 I.

        The Plaintiffs submitted a FOIA request to FBI Headquarters, requesting information

about the victims and investigations of the Jonestown Massacre in Jonestown, Guyana. See

McGehee v. U.S. Dep’t of Justice, 800 F. Supp. 2d 220, 226 (D.D.C. 2011). 1 They eventually

sued the FBI’s parent agency, the Department of Justice, alleging that the production that they




1
  The Court assumes familiarity with the facts here. See McGehee v. U.S. Department of Justice
(“McGehee I”), 800 F. Supp. 2d 220, 226 (D.D.C. 2011).
received was inadequate. Id. The parties filed cross-motions for summary judgment, which

were granted in part and denied in part. Id.

       Later, the FBI discovered and then released more material to the Plaintiffs. Seventeenth

Hardy Decl. (“Hardy Decl.”) ¶ 15, ECF No. 256-3. The Court ordered the Plaintiffs to “submit a

final comprehensive list of document requests” to the FBI. 5/19/14 Order, ECF No. 191. The

FBI conducted additional searches and released more material including photographs, audio

tapes, and video tapes. Hardy Decl. ¶ 23.

       After the Plaintiffs moved for partial summary judgment, and the Department moved for

summary judgment, the Court denied the Plaintiffs’ Motion and granted the Department’s

Motion. McGehee v. U.S. Dep’t of Justice (“McGehee II”), 362 F. Supp. 3d 14, 22 (D.D.C.

2019). 2 The Plaintiffs have now moved for reconsideration of that Order. See Pls.’ Mem. of

Points and Authorities (“Pls.’ Mem.”), ECF No. 268. The Department opposes. See Def.’s

Opp., ECF No. 270.

                                                 II.

       Courts generally treat a motion for reconsideration as originating under Federal Rule of

Civil Procedure 59(e) if a party files it within 28 days of the entry of the order at issue. Owen-




2
  The Plaintiffs erroneously claim that the Department filed a “motion for partial summary
judgment.” See Pls.’ Mem. of Points and Authorities (“Pls.’ Mem.”) at 4, ECF No. 268. While
the Plaintiffs moved only for partial summary judgment, the Department sought total vindication.
See Def.’s Cross-Mot. for Summ. J., ECF No. 256. They also inexplicably repeatedly suggest
the Court dismissed the case, when the Court actually granted summary judgment to the
Department.

The Plaintiffs also claim that the Court “dismissed the plaintiffs’ lawsuit with prejudice.” See
Pls.’ Mem. at 2. This is not true. The Court granted summary judgment to the Department. See
McGehee II, 362 F. Supp. 3d at 22.




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Williams v. BB&T Inv. Servs., Inc., 797 F. Supp. 2d 118, 121–22 (D.D.C. 2011). The Plaintiffs

filed their motion on April 1, 2019, precisely 28 days after the Court’s March 4, 2019 Order. See

Pls.’ Mem. So they are entitled to consideration under Rule 59(e). 3 Arabaitzis v. Unum Life Ins.

Co. of Am., 351 F. Supp. 3d 11, 14 (D.D.C. 2018).

       “Rule 59(e) is not a vehicle to present a new legal theory that was available prior to

judgment,” Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012), or “a

chance for [a party] to correct poor strategic choices.” SEC v. Bilzerian, 729 F. Supp. 2d 9, 15

(D.D.C. 2010).

       “Rule 59(e) permits a court to alter or amend a judgment, but it may not be used to

relitigate old matters, or to raise arguments or present evidence that could have been raised prior

to the entry of judgment.” Leidos v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018)

(quoting Exxon Shipping v. Baker, 554 U.S. 471, 486 n.5 (2008)). Courts may grant a Rule 59(e)

motion only “(1) if there is an intervening change of controlling law; (2) if new evidence

becomes available; or (3) if the judgment should be amended in order to correct a clear error or

prevent manifest injustice.” Id. (cleaned up). “And the moving party has the burden of proving

that relief under Rule 59(e) is warranted.” Arabaitzis, 351 F. Supp. 3d at 14.

                                                III.

       The Plaintiffs have failed to satisfy Rule 59(e)’s standard. First, they allege no change in

law or new evidence. See generally Pls.’ Mem. In fact, the Plaintiffs admit that “the situation




3
  The Plaintiffs invoke Federal Rule of Civil Procedure 52. See Pls.’ Mot. for Reconsideration at
1, ECF No. 268-12. Rule 52 permits amendment of findings and conclusions by the court for
“actions tried on the facts without a jury or with an advisory jury.” This action was not tried on
facts but resolved on motions for summary judgment, so Rule 52 does not apply. See Kline v.
Archuleta, 309 F.R.D. 91, 93 (D.D.C. 2015).



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has not changed since [their] previous listings of documents . . . .” See Pls.’ Reply at 3, ECF No.

271. 4 And the Plaintiffs do not allege that reconsideration is necessary to prevent manifest

injustice. See generally Pls.’ Mem.

       As to alleging a “clear error,” the Plaintiffs claim that the Court “uncritically adopted the

FBI’s representations” in its briefing and relevant declarations. Id. at 5. They complain that

“this court and others continue to accept Mr. Hardy’s representations” even though, allegedly, he

has little credibility. Id. But they offer no caselaw or record citations to support a claim that this

Court should—or even could—disregard the sworn declaration of David Hardy, the Section

Chief of the Record/Information Dissemination Section, Information Management Division at

the FBI.

       The Plaintiffs still insist that the Court should order the Department to release “the San

Francisco Field Office Files Transferred to the FBI Headquarters.” Pls.’ Mem. at 2. In making

their argument, they attach a new declaration from the lead Plaintiff to their six-page reply brief.

See McGehee Decl., ECF No. 271-1. The Court does not consider arguments raised for the first

time in a reply brief. See Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992)

(“To consider an argument for the first time in reply would be manifestly unfair to the

[respondent] who, under our rules, has no opportunity for a written response. Moreover, it

would risk the possibility of an improvident or ill-advised opinion.”). And Rule 59(e) does not

allow parties to present evidence that could have been submitted before the entry of judgment.

See Leidos, 881 F.3d at 217.




4
 The Court directs Plaintiffs’ Counsel’s attention to Local Rule 5.1(d), requiring all pleadings to
appear in 12-pt. font.


                                                  4
        In any event, this declaration provides no basis for relief under Rule 59(e). In fact, this

new declaration makes the same argument that the Court has already rejected. See Pls.’ Mot. for

Summ. J. at 17–20, ECF No. 253. The Plaintiffs insist that these records were at the FBI

Headquarters. McGehee Decl. at 2, ECF No. 271-1. As the Court has already said, even if there

was evidence that these records were there at some point, “the Plaintiffs offer no evidence that

the San Francisco documents were at the FBI Headquarters when they submitted their FOIA

requests.” McGehee II, 362 F. Supp. 3d at 19. In any case, “the adequacy of a FOIA search is

generally determined not by the fruits of the search, but by the appropriateness of the methods

used to carry out the search.” Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C.

Cir. 2003). In short, the Plaintiffs fail to identify any error, much less a clear error, in the

Court’s earlier Order.

        The Plaintiffs also ask the Court to conduct in-camera review of some disputed

documents. Pls.’ Mem. at 12. But even they admit that the Court need not do so. Id. (“The use

of in-camera inspection for a limited number of documents is almost obligatory under the

circumstances of this case.” (emphasis added)). See also Stolt–Nielsen Transp. Grp., Ltd. v.

United States, 534 F.3d 728, 734–35 (D.C. Cir. 2008) (noting district courts have discretion to

rely on affidavits or conduct in camera review to decide whether government has released all

reasonably segregable, nonexempt material). The Court will not do so here.

        Finally, the Plaintiffs request “an extension of time, nunc pro tunc to and including April

1, 2019 to file this motion.” Pls.’ Mot. for Reconsideration at 2, ECF No. 268-12. The

Plaintiffs’ Motion for Reconsideration was filed April 1, 2019, so no extension of time is

necessary.




                                                   5
       It is possible that the Plaintiffs are asking for an extension to file an Opposition to the

Department’s Motion for Summary Judgment. If so, the Court will reject this request because

the Plaintiffs have not shown that an extension is warranted. The Plaintiffs’ Opposition was due

February 28, 2019, see 2/14/19 Order, ECF No. 264, and they did not request an extension until

April 1, 2019. See ECF No. 268-12. Not only do the Plaintiffs fail to give any new reasons why

the Court should modify the summary judgment briefing schedule, they do not even

acknowledge the fact that the Court has already ruled. To accept an out-of-time Opposition now

would cause significant prejudice to the Department, and the Plaintiffs have not shown that any

extension is appropriate. Thus, the Court will not grant an extension of time.

        The Plaintiffs claim that “[b]y filing his Feb. 19, 2019 Notice of Filing, which was the

only way he had of communicating with the Court at the time, Counsel did not intend to violate

the authority of the Court to set the schedule in this case.” Pls.’ Mot. for Reconsideration at 3.

But the Notice did not seek leave or request an extension. See Notice of Filing, ECF No. 265. It

merely announced that Plaintiffs’ Counsel was leaving for Singapore, and “Plaintiff will not be

able to file his response from Singapore, but will do so within a week after he returns.” See id.

This is inappropriate: the Court, not the parties, set the briefing schedule. It would have been

just as easy for the Plaintiffs to seek an extension as it was to file the Notice. But the former

would have been more efficacious.

       The Plaintiffs also seem to suggest that they could not file their Opposition because

Plaintiffs’ Counsel needed to work on a petition for writ of certiorari due April 28, 2019. Pls.’

Mot. for Reconsideration at 2–3. The Plaintiffs did not mention this problem in their “Notice of

Filing.” See Notice of Filing. Even now, they do not explain how that April deadline prevented




                                                  6
them from complying with the Court’s February deadline. See Pls.’ Mot. for Reconsideration at

2–3.

       The Plaintiffs could have opposed the Department’s motion, but they did not. They also

could have filed a timely motion for an extension, but they did not even do this. There is no

manifest injustice when “a party could have easily avoided the outcome, but instead elected not

to act until after a final order had been entered.” Arabaitzis, 351 F. Supp. 3d at 14 (quoting

Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir. 2004)).

                                                 IV.


       In sum, none of the Plaintiffs’ arguments fall within Rule 59(e)’s “limited exception to

the rule that judgments are to remain final.” Leidos, 881 F.3d at 217. So they have not shown

that they are entitled to reconsideration of the Court’s prior Order.


       For all these reasons, the Plaintiffs’ Motion for Reconsideration will be denied. A

separate Order will issue.
                                                                          2019.06.18
                                                                          16:07:35 -04'00'
Dated: June 18, 2019                                   TREVOR N. McFADDEN, U.S.D.J.




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