Summary
holding that exemption 7(E) was properly invoked where a smuggler could use "the rate of examinations . . . to direct his merchandise to vulnerable ports," notwithstanding the public knowledge that examinations sometimes took place
Summary of this case from New York Civil Liberties Union v. Dept. of Homeland SecurityOpinion
CV 02-3838 WMB (MANx)
June 13, 2003
ORDER DENYING PLAINTIFF'S REQUEST THAT THE COURT INDICATE ITS WILLINGNESS TO ENTERTAIN OR TO GRANT PLAINTIFF'S MOTION FOR RECONSIDERATION
I. Introduction
To help determine damages in a different, unrelated lawsuit, plaintiff Coastal Delivery Corp. ("Coastal") filed a complaint under the Freedom of Information Act ("FOIA") seeking information regarding the number of examinations performed in 1998, 1999, 2000 and 2001on merchandise arriving into the Los Angeles/Long Beach seaport generally, and the number of examinations performed at a particular warehouse specifically. Defendant, the United States Customs Service ("Customs"), maintains that the information is protected under the (b)(2) and (b)(7)(E) exemptions to FOIA because terrorists and others could use the information to discover the rate of inspection and then direct their containers to vulnerable ports.
This Court heard the parties' cross motions for summary judgment on March 12, 2003, and issued an order granting summary judgment in favor of defendant Customs on March 14, 2003. The order was entered on March 18, 2003, and plaintiff filed a motion for reconsideration on May 5, 2003. Plaintiff then filed a Notice of Appeal on May 16, 2003.
For further discussion of the facts and the law in this case, please see this Court's March 18, 2003 Order.
Because plaintiff's motion was not filed within ten days of the judgment, plaintiff cannot base its motion on Rule 59(e). The Court assumes that the motion is based on Rule 60(b), which empowers a Court to vacate a judgment and reverse itself when it has made a mistake, when newly discovered evidence arises, or for any other reason justifying relief from the judgment. Fed.R.Civ.Pore. 60(b).
II. Jurisdiction
A Notice of Appeal divests the district court of jurisdiction over matters related to the appeal. See, e.g., Smith v. Luian. 588 F.2d 1304 (9th Cir. 1979). Though the majority of jurisdictions have held that a district court has the jurisdiction to deny, but not grant, a Rule 60(b) motion for reconsideration even after an appeal has been filed, in this circuit the district court does not have jurisdiction to act on the motion at all once the notice of appeal has been filed. The proper procedure is for plaintiff to "ask the district court to indicate if it wished to entertain the motion, or to grant it, and then (if [plaintiff thinks] it appropriate) [it] could move th[e] [appellate] court for remand of the case." Smith v. Luian, 588 F.2d at 1307.
There are some exceptions to this rule, but the exceptions do not apply here. Fed.R.App.Proc. 4(A) provides that if certain motions are pending, the notice of appeal does not Become effective until the order disposing of the last remaining motion is entered. This oiling of the divestment of jurisdiction applies to motions to alter or amend the judgment under Rule 59 and motions for relief under Rule 60(b) if filed within ten days of the judgment. There is no question that plaintiff did not file the motion within ten days of the judgment.
Therefore, the Court interprets plaintiff's motion as a request that the Court indicate its willingness to entertain or to grant plaintiff's motion for reconsideration. This request is denied.
III. Plaintiff's Narrowed Request
On June 6, 2003 plaintiff filed a Narrowed Request for Records Pursuant to Its FOIA Complaint. In its Complaint, plaintiff stated that it had "an interest in obtaining records" of the number of examinations for NISCO Pacific Warehouse only for 1998, 1999, 2000 and 2001, as well as "statistical details containing control number totals" for examinations at the Port of Los Angeles. The narrowed request was for "records of the gross number of examinations at Nisco Pacific Warehouse for 1998, 1999 and 2000, " or in the event there are no such documents, "documents relating to examinations performed at Nisco which contain information or numbers that, when compiled, would provide Plaintiff with the gross number of examinations" for the specified period.
Citing judicial economy and efficiency, courts have held that it is proper for a plaintiff to submit a narrowed request during the course of the litigation. See Transpacific Policing Agreement v. U.S. Customs Service, 177 F.3d 1022, 1026 (D.C. Cir. 1999) (remanding the case and directing the district court to consider the narrowed request, as "both the agency and the District Court had an affirmative obligation to consider segregability sua sponte."). However, inTrans-Pacific Policing Agreement the narrowed request was for more limited information contained within documents that had already been identified. In the present case, the identified and redacted documents do not contain information pertaining to the Nisco warehouse alone — the information in the identified documents shows redacted numbers for the number of searches at the docks and the number of searches off-site. Plaintiff has argued that Nisco is the only off-site location, but Customs alleges there are other sites. Moreover, Customs alleges that there are no documents to satisfy plaintiff's narrowed request, and even if Customs could gather the information to create a record responsive to the request, it has no duty to do so. See Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982) ("A requester is entitled only to records that an agency has in fact chosen to create and retain . . . [an agency] need not obtain or regain possession of a record in order to satisfy a FOIA request.")
Summary judgment is appropriate in FOIA cases once documents at issue are properly identified. See Miscavige v. IRS, 2 F.3d 366 (11th Cir. 1993). As there is a dispute as to whether the records exist, and the records have not been identified, summary judgment is not proper for the narrowed request at this time.
Furthermore, the Court would be inclined to deny plaintiff's request for reconsideration because the information requested, in combination with other information, could reasonably be used to circumvent the law, and therefore the information was properly withheld under exemptions (b)(2) and (b)(7)(E) to FOIA.
IV. Conclusion
For the reasons stated above, plaintiff's request that the Court indicate its willingness to entertain or to grant plaintiff's motion for reconsideration is DENIED.
IT IS SO ORDERED.