                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


JAMES MURPHY,                      )
                                   )
               Plaintiff,          )
                                   )
            v.                     )                 Civ. Action No. 13-0573 (ESH)
                                   )
EXECUTIVE OFFICE FOR               )
UNITED STATES ATTORNEYS,           )
                                   )
               Defendant.          )
__________________________________ )


                                 MEMORANDUM OPINION

       In December 2013, the Court granted in part and denied in part defendant’s motion for

summary judgment on plaintiff’s Freedom of Information Act (“FOIA”) claims and ordered the

release of certain information “if . . . contained in an agency record.” See generally Dec. 6, 2013

Mem. Op. and Order [ECF No. 21] (“Mem. Op. I”). Both parties have moved for

reconsideration. See Def.’s Mot. for Recons. or, in the Alternative, to Alter or Amend

Judgment, and Mot. for Stay [ECF No. # 24]; Pl.’s Mot. to Alter or Amend the Judgment [ECF

No. 25]. In light of defendant’s motion, the Court ordered defendant to submit for in camera

review the unredacted records containing information withheld under FOIA exemption 3 and

stayed the release of any information pending further order. See Dec. 30, 2013 Min. Order.

Upon consideration of the parties’ motions and the documents which have been submitted in

camera, the Court will grant defendant’s motion for reconsideration, deny plaintiff’s motion for

reconsideration, and enter judgment accordingly.

       Since a judgment has not been entered on any claim, the Court will consider both motions

to reconsider under Rule 54(b) of the Federal Rules of Civil Procedure. Rule 54(b) governs
reconsideration of interlocutory or non-final orders, and a motion for such relief is considered

under the standard Aas justice requires.@ Campbell v. United States Dep't of Justice, 231 F. Supp.

2d 1, 7 (D.D.C. 2002) (quoting Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000)). An

interlocutory order Amay be revised 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), but A[i]n general, a

court will grant a motion for reconsideration of an interlocutory order only when the movant

demonstrates: >(1) an intervening change in the law; (2) the discovery of new evidence not

previously available; or (3) a clear error in the first order.= @ Zeigler v. Potter, 555 F. Supp. 2d

126, 129 (D.D.C. 2008) (quoting Keystone Tobacco Co. v. U.S. Tobacco Co., 217 F.R.D. 235,

237 (D.D.C. 2003)).

        Plaintiff’s Motion to Reconsider

        Plaintiff surmises that because the ruling did not address each of his “issue[s]” . . .

“separate and distinctly,” the Court had “overlooked” the Affidavit submitted as part of his

opposition. See Pl.’s Brief in Support of the Mot. to Alter, or Amend Judgment ¶¶ 1-3. When

deciding a summary judgment motion, however, the Court is required to resolve disputes over

“material fact[s].” Fed. R. Civ. P. 56; see Mem. Op. I at 3-4 (discussing legal standard).

Plaintiff asserts that the Court “overlooked [his] reliance on the privacy act,” Pl.’s Brief ¶ 3

(citing Am. Compl. [ECF No. 8] ¶ 1), but he mentions the Privacy Act only in the context of

seeking the “production of agency records” requested under the FOIA. Am. Compl. ¶ 1.

Plaintiff’s “reliance” on the Privacy Act to obtain agency records is misplaced for two reasons:

(1) the Act proscribes the invasion of personal privacy by restricting the disclosure of an

individual’s information; and (2) the Act expressly exempts from its reach information that is

required to be disclosed under the FOIA. 5 U.S.C. § 552a(b)(2); see Greentree v. United States



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Customs Serv., 674 F.2d 74, 79 (D.C. Cir. 1982) (concluding “that section (b)(2) of the Privacy

Act represents a Congressional mandate that the Privacy Act not be used as a barrier to FOIA

access”).

       Plaintiff also asserts that the Court overlooked (1) his claim that defendant’s declaration

was “conclusory and insufficient,” and (2) his challenge to “the adequacy of the search, and its

scope, because the agency alleges to have provided the captions of the indictments for both cases

which appears [sic] to be stated in bad faith . . . .” (Aff. of James E. Murphy [ECF No. 13] ¶¶

16, 19.) The former assertion is belied by the fact that the Court agreed in part with plaintiff’s

criticism of defendant’s declaration and, as a result, partially denied summary judgment to

defendant. See Mem. Op. I at 6. As for the latter assertion, the Court determined that the

premise of plaintiff’s argument is not that defendant improperly withheld responsive documents,

which triggers FOIA analysis, but that it released inaccurate court documents, which does not.

See id. at 5. Since plaintiff has presented no basis for amending the order, his Rule 54(b) motion

will be denied.

       Defendant’s Motion for Reconsideration

       The Court has carefully reviewed the documents which contain containing the requested

times that the grand jury convened, along with a supporting declaration, in camera and it finds

the documents to be exempt under FOIA exemption 3 because they are grand jury forms

containing information that would reveal secret aspects of a grand jury investigation. See Mem.

Op. I at 6 (discussing grand jury material); see also Second Decl. of Kathleen Brandon [ECF No.

24-3] ¶ 3 (describing generally “scenarios [where] the times in which a grand jury was convened

in a particular case could disclose to a requester the identity of [grand jury] witnesses”).

“Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if [as here] it



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appears ‘logical’ or ‘plausible.’ ” Judicial Watch, Inc. v. U.S. Dep’t of Defense, 715 F.3d 937,

941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir.

2011) (other citations omitted). The Court further finds that any non-exempt information

contained in the documents is so “inextricably intertwined” with the exempt information that any

attempt to segregate the documents would “produce an edited document with little informational

value.” Mays v. DEA, 234 F.3d 1324, 1327 (D.C. Cir. 2000) (citation and internal quotation

marks omitted).

       For the foregoing reasons, the Court concludes that no improper withholding has

occurred. It therefore will grant defendant’s Rule 54(b) motion to reconsider and vacate the

order directing the release of what defendant has now shown to be exemption 3 material. See

Morgan v. U.S. Dep’t of Justice, 923 F.2d 195, 196 (D.C. Cir. 1991) (“[T]he FOIA gives federal

courts jurisdiction to compel an agency to produce records only if the agency has (1) improperly

(2) withheld (3) agency records.”) (citation and internal quotation marks omitted).

Consequently, plaintiff’s pending motions will be denied. A separate final order accompanies

this Memorandum Opinion.



                                                     ___________/s/__________
                                                     ELLEN SEGAL HUVELLE
DATE: February 3, 2014                               United States District Judge




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