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Wellman v. Department of Justice

United States District Court, D. Nevada

March 20, 2018

MICAH K. WELLMAN, Plaintiff,



         I. SUMMARY

         Before the Court is Defendant's Motion to Reconsider Order Regarding Second Amended Complaint (“Motion to Reconsider”) (ECF No. 48) and Motion to Dismiss Third Amended Complaint (“Motion to Dismiss”) (ECF No. 49). The Court has reviewed Plaintiff Micah K. Wellman's response, and Defendant's reply. (ECF Nos. 51, 52.) For the reasons stated below, the Motion to Reconsider is granted and the Motion to Dismiss is denied.


         Proceeding pro se, Micah K. Wellman seeks the production of agency records and emails concerning an Internal Affairs investigation that Defendant conducted. He alleges that on May 14, 2013, he filed a Freedom of Information Act (“FOIA”) request to obtain information regarding the investigation. He subsequently received an acknowledgment letter from Defendant's Disclosure Division dated June 13, 2013, indicating that the request was assigned ATF FOIA number 13-1026 (“FOIA 13-1026”). Defendant's letter did not, however, mention whether Defendant would need more than the normal 20-day processing period as provided by statute to comply with the request. See 5 U.S.C. § 552(a)(6)(A)-(B). Despite subsequent attempts to check on the status of his request, Plaintiff had not received any responsive records from Defendant regarding FOIA 13-1026 as of July 3, 2014, the date he filed the original complaint.

         Defendant filed its first motion to dismiss (ECF No. 11) on September 15, 2014, which this Court granted in part and denied in part while giving Plaintiff an opportunity to amend the initial complaint as to the jurisdictional problem with Plaintiff's Administrative Procedures Act (“APA”) claim (ECF No. 17 at 4-5). Plaintiff then filed his First Amended Complaint (“FAC”) on August 26, 2015. (ECF No. 18.) Defendant again moved to dismiss Plaintiff's FAC but only as to the APA claim. (ECF No. 20.) The Court granted dismissal but permitted Plaintiff to amend the FAC (“Second Dismissal Order”).[1] (ECF No. 24.)

         In Plaintiff's Second Amended Complaint (“SAC”) (ECF No. 25), he removed all explicit references to the APA but maintained his challenges to Defendant's “policy, discretion and procedure for processing and responding to FOIA requests” and “lack of a determination [ ] in violation of Department of Justice Office of Information Policy (OIP) guidelines and [Defendant's] own internal policy.” (ECF No. 25 at ¶¶ 2, 19.) Defendant then moved to strike the entirety of the SAC on the basis that it was a rogue document. (ECF No. 26.) Instead of striking the entire SAC, the Court ordered that paragraph 15 be stricken from the SAC (“Strike Order”). (ECF No. 33 at 3.)

         Plaintiff filed his Third Amended Complaint (“TAC”) in which he removed paragraph 15. (ECF No. 45.) Defendant now seeks reconsideration of the Court's Strike Order as well as dismissal of the TAC. (ECF Nos. 48, 49.)


         Defendant argues that its prior motion to strike was aimed at the entirety of the SAC, not just paragraph 15. Defendant points out that the SAC “impermissibly amended Plaintiff's FOIA claim with assertions besides those alleged in paragraph 15, including ‘a challenge to the agency policy, discretion and procedure' for processing FOIA requests and a ‘lack of a determination' in violation of agency guidelines and policy.” (ECF No. 48 at 2 (citing ECF No. 25 at ¶¶ 2, 19).)

         A motion to reconsider must set forth “some valid reason why the court should reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision.” Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Here, the Court finds that the Second Dismissal and Strike Orders created confusion and will grant reconsideration of the Strike Order.

         The SAC made minimal changes to the allegations in the FAC and clearly did not amend or attempt to amend the FAC's APA claim. In fact, the SAC removed any previous reference to the APA. To the extent Plaintiff construed the Court's Second Dismissal Order as permitting amendments to the FOIA claim, the Court did not intend to permit such amendments. The Court had intended to permit amendment to provide allegations that agency personnel had acted arbitrarily or capriciously with respect to the withholding of agency records. (ECF No. 24 at 4.) However, this requested relief falls under FOIA, not the APA[2] as the Court incorrectly implied in the Second Dismissal Order, and therefore, any factual allegations related to this requested relief would necessarily require amendment of Plaintiff's FOIA claim. The Court, therefore, created confusion between the parties by stating in the Strike Order that the requested relief-for which it permitted amendment of the FAC-arose under the APA. (See ECF No. 44 at 2 (citing to ECF No. 24 at 4-5).) For that reason, the Court will grant Defendant's Motion to Reconsider.

         However, because it would be abundantly unfair to penalize Plaintiff for the Court's lack of clarity in the Second Dismissal and Strike Orders, the Court permits Plaintiff to proceed under the TAC, which the Court construes as alleging a FOIA claim only. Further, the Court disagrees with Defendant that the Court dismissed the inclusion of the “policy, discretion and procedure” allegations when it dismissed the APA claim. (See ECF No. 49 at 6-7.) It is not inconsistent with FOIA for Plaintiff to challenge Defendant's compliance with its own policy or procedure in responding to Plaintiff's FOIA request, [3] including whether Defendant's failure to provide a timely determination violated FOIA or Defendant's own internal policy.[4] While Plaintiff may have originally referenced the APA when challenging Defendant's policies and procedures in responding to FOIA requests (see ECF No. 18 at ¶ 2; see also ECF No. 49 at 4-5), the Court finds that these challenges may be ...

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