Judicial Watch, Inc. v. U.S. Department of State

• Court: District Court, District of Columbia
• Decided: June 2, 2021
• Docket: Civil Action No. 2020-1729
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC.,

Plaintiff,

v. Civil Action No. 20-1729 (TJK)

U.S. DEPARTMENT OF STATE,

Defendant.

ORDER

Defendant United States Department of State (“State”) moves for judgment on the

pleadings under Federal Rule of Civil Procedure 12(c), asking the Court to bar this suit, brought

by Plaintiff Judicial Watch, Inc. (“Judicial Watch”), on the grounds of res judicata and collateral

estoppel. “A motion for judgment on the pleadings pursuant to Rule 12(c) may be granted ‘only

if it is clear that no relief could be granted under any set of facts that could be proved consistent

with the allegations.’” Fox v. District of Columbia, 924 F. Supp. 2d 264, 268 (D.D.C. 2013)

(quoting Longwood Vill. Rest. v. Ashcroft, 157 F. Supp. 2d 61, 66 (D.D.C. 2001)). For the

reasons explained below, State has failed to show that res judicata and collateral estoppel apply,

and so the Court will deny the motion.

On October 31, 2017, Judicial Watch submitted a FOIA request that sought, among other

things, “[a]ny and all requests for . . . records submitted to any Intelligence Community member

agency by former United States Ambassador to the United Nations Samantha Power[]

concerning, regarding, or relating to . . . [t]he identities of U.S. citizens associated with the

Trump presidential campaign or transition team who were identified pursuant to intelligence

collection activities.” See Judicial Watch v. Dep’t of State, 373 F. Supp. 3d. 142, 144 (D.D.C. CONFIDENTIAL DRAFT

2019). State asserted a Glomar response, and on March 13, 2019, this Court upheld the propriety

of that response and granted summary judgment for State.1 Id. at 149.

A few weeks later, on May 29, 2019, Judicial Watch submitted the FOIA request at issue

in this case, which is identical to the one it submitted in 2017. ECF. No. 1 (“Compl.”) ¶ 5.

Almost a year later, on May 13, 2020, Acting Director of National Intelligence Richard Grenell

released a newly declassified memorandum and accompanying list (“the Grenell Memorandum”)

that identified officials who submitted requests to the National Security Agency to “unmask” the

identity of Lt. General Michael Flynn in foreign intelligence reports. See Compl. ¶ 9 & ECF No.

1-1. The Grenell Memorandum showed that Ambassador Power or persons acting on her behalf

made seven such requests. Id. The next month, on June 24, 2020, Judicial Watch filed this suit,

alleging that the Grenell Memorandum waived any Glomar response, at least as to the requests

made by Ambassador Power to “unmask” Lt. General Flynn. Compl. ¶ 10 (“Accordingly,

Defendant’s earlier Glomar response has been superseded by intervening events.”).

Res judicata bars a later lawsuit “if there has been prior litigation (1) involving the same

claims or cause of action, (2) between the same parties or their privies, and (3) there has been a

final, valid judgment on the merits, (4) by a court of competent jurisdiction.” Smalls v. United

States, 471 F.3d 186, 192 (D.C. Cir. 2006). However, “[i]t is clear that res judicata does not

preclude claims based on facts not yet in existence at the time of the original action, or when

changed circumstances alter the legal issues involved.” ACLU v. Dep’t. of Justice, 321

F. Supp. 2d 24, 34 (D.D.C. 2004) (cleaned up).

1 This type of FOIA response received its name from Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976), in which the CIA refused to confirm or deny whether records existed relating to a ship named Hughes Glomar Explorer. See Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007).

2 CONFIDENTIAL DRAFT

The problem with State’s argument is that the Grenell Memorandum did not exist when

the earlier lawsuit about Judicial Watch’s original request was pending. Thus, Judicial Watch

could not have raised claims based on it, and it has changed the legal issues involved in this case.

As the D.C. Circuit has instructed, res judicata “does not bar a litigant from doing in the present

what he had no opportunity to do in the past.” Drake v. F.A.A., 291 F.3d 59, 67 (D.C. Cir. 2002).

“Thus, rather than seeking to relitigate issues that were decided in” the previous case, Judicial

Watch’s claim in this case “present[s] a new question”—whether the records it seeks are

“properly withheld in light of the [Acting Director of National Intelligence’s] declassification

decision.” ACLU, 321 F. Supp. 2d at 34. And for similar reasons, collateral estoppel gets State

no further. Collateral estoppel requires that “the same issue now being raised must have been

contested by the parties and submitted for judicial determination in the prior case.” Mead v.

Lindlaw, 839 F. Supp. 2d 66, 71 (D.D.C. 2012). But the Grenell Memorandum injects a new,

and potentially decisive, issue into the case.

Even so, State argues that res judicata and collateral estoppel bar Judicial Watch’s claims

because the Court may not consider the effect of the Grenell Memorandum for another reason.

State contends that “[a]s a general rule, an agency’s decision on a FOIA request is evaluated at

the time it is made, not based on ‘post-response occurrences.’” ECF No. 12 at 9 (citing ACLU v.

NSA, 925 F.3d 576, 602 (2d Cir. 2019)). Thus, State argues, its decision to invoke a Glomar

response to Judicial Watch’s 2017 FOIA request cannot be affected by later developments like

the Grenell Memorandum. But this case is not about State’s response to Judicial Watch’s 2017

request; it is about State’s response to its 2019 request. Still, State counters, even when Judicial

Watch made its 2019 request, the Grenell Memorandum did not yet exist. Perhaps this argument

would have had more force if State had responded to Judicial Watch’s 2019 request by simply

3 CONFIDENTIAL DRAFT

invoking Glomar again. But, the parties agree, it did not respond at all. For this reason, the

Grenell Memorandum is not a “post-response” event that the Court may not consider in

evaluating State’s decision not to provide the requested records.

For the reasons explained above, it is hereby ORDERED that State’s Motion for

Judgment on the Pleadings, ECF No. 12, is DENIED. Further, it is ORDERED that by June 25,

2021, the parties shall meet, confer, and submit a joint proposed schedule for summary judgment

briefing, at which time the parties may address the effect of the Grenell Memorandum, and

whether it waives a Glomar response to Judicial Watch’s request.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: June 2, 2021