Pfeiffer v. United States Department of Energy ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MARTIN PFEIFFER, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-2924 (RBW)
)
UNITED STATES DEPARTMENT )
OF ENERGY, )
)
Defendant. )
)
MEMORANDUM OPINION
The plaintiff, Martin Pfeiffer, brings this civil action against the defendant, the United
States Department of Energy (the “Department”), alleging a violation under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. See Complaint for Declaratory and Injunctive Relief
(“Compl.”) ¶ 1, ECF No. 1. On June 27, 2022, the Court denied the Department’s motion for
summary judgment and granted in part and denied in part the plaintiff’s cross-motion for
summary judgment. See Pfeiffer v. U.S. Dep’t of Energy, No. 20-cv-2924 (RBW),
2022 WL 2304069, at *8 (D.D.C. June 27, 2022) (the “June 27, 2022 Memorandum Opinion”).
Currently pending before the Court is the Defendant’s Motion for Reconsideration (“Def.’s
Mot.” or “the Department’s motion”), ECF No. 22. Upon careful consideration of the parties’
submissions,1 the Court concludes for the following reasons that it must deny the Department’s
motion.
1
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Plaintiff’s Opposition to Defendant’s Motion for Reconsideration (“Pl.’s Opp’n”), ECF No. 24; and
(2) the Defendant’s Reply in Further Support of Defendant’s Motion for Reconsideration (“Def.’s Reply”), ECF
No. 26.
I. BACKGROUND
The Court previously discussed the factual background and statutory authority pertinent
to this case in its June 27, 2022 Memorandum Opinion, see Pfeiffer, 2022 WL 2304069, at *1–3,
and therefore will not reiterate those facts and authorities again here. The Court will, however,
set forth the procedural background which is pertinent to the resolution of the pending motion for
reconsideration.
In the Court’s June 27, 2022 Memorandum Opinion, the Court denied the Department’s
motion for summary judgment on the plaintiff’s petition for a waiver of fees under the FOIA and
granted in part and denied in part the plaintiff’s cross-motion for summary judgment. See id.
at *8. First, the Court concluded that “the plaintiff [ ] qualifies as an educational institution
requester” because he “has more than sufficiently demonstrated that the requested FOIA records
are connected to his scholarly research[.]” Id. at *6. Second, the Court determined that “the
potential marginal profit the plaintiff would acquire from his Patreon webpage, should he even
choose to publish the FOIA records on his Patreon webpage, does not trump his scholarly
intentions to utilize the records for his studies and his online dissemination of the records without
cost to the public.” Id. at *8. Accordingly, the Court “conclude[d] that the Department
improperly denied the plaintiff’s fee waiver request,” id., and therefore granted the plaintiff’s
cross-motion, insofar as it sought summary judgment on the issue of his entitlement to a FOIA
fee waiver as a non-commercial educational institution requester regarding the five FOIA
requests at issue in this case, see id.Because the Court concluded that the plaintiff qualifies as an educational institution
FOIA requester, the Court refrained from “address[ing] the question of whether the plaintiff
alternatively qualifies as a news media representative.” Id. at *4 n.4. Furthermore, “[w]hile the
2
Court conclude[d] that the plaintiff is appropriately categorized as an educational [institution]
requester for the FOIA records that are the subject of this case,” the Court also noted that “this
does not entitle the plaintiff to a declaratory judgment classifying him as an educational
[institution] requester for all future requests[,]” id. at *6 n.6, as the plaintiff sought in his
Complaint, see Compl. at 10. Rather, as the Court explained, “[a]ny future FOIA fee waiver
requests submitted by the plaintiff must be evaluated independently based on the circumstances
that exist at the time.” Pfeiffer, 2022 WL 2304069, at *6 n.6.
On July 25, 2022, the Department filed its motion for reconsideration of the Court’s
June 27, 2022 Memorandum Opinion and Order pursuant to Rule 54(b), or alternatively
Rule 59(e), of the Federal Rules of Civil Procedure. See Def.’s Mot. at 1. The plaintiff then
filed his opposition on August 5, 2022, see Pl.’s Opp’n at 1, and the Department filed its reply in
support of its motion on August 16, 2022, see Def.’s Reply at 1.
II. STANDARD OF REVIEW
A. Rule 54(b) Motion for Reconsideration
Under Federal Rule of Civil Procedure 54(b), any order or decision that does not
constitute a final judgment “may 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).
Although “district court[s] ha[ve] ‘broad discretion to hear a motion for reconsideration brought
under Rule 54(b)[,]’” Univ. of Colo. Health at Mem’l Hosp. v. Burwell, 164 F. Supp. 3d 56, 62
(D.D.C. 2016) (quoting Isse v. Am. Univ., 544 F. Supp. 2d 25, 29 (D.D.C. 2008)), district courts
grant motions for reconsideration of interlocutory orders only “as justice requires[,]” Capitol
Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011)
(quoting Greene v. Union Mut. Life Ins. Co. of Am., 764 F.2d 19, 22–23 (1st Cir. 1985)).
3
In determining whether “justice requires” reversal of a prior interlocutory order, courts
assess circumstances such as “whether the court ‘patently’ misunderstood the parties, made a
decision beyond the adversarial issues presented, made an error in failing to consider controlling
decisions or data, or whether a controlling or significant change in the law has occurred.”
In Def. of Animals v. Nat’l Insts. of Health, 543 F. Supp. 2d 70, 75 (D.D.C. 2008)
(quoting Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005)); see Davis v.
Joseph J. Magnolia, Inc., 893 F. Supp. 2d 165, 168 (D.D.C. 2012) (“[A] motion for
reconsideration is discretionary and should not be granted unless the movant presents either
newly discovered evidence or errors of law or fact that need correction.”). “The burden is on the
moving party to show that reconsideration is appropriate and that harm or injustice would result
if reconsideration were denied.” United States ex rel. Westrick v. Second Chance Body Armor,
Inc., 893 F. Supp. 2d 258, 268 (D.D.C. 2012). And, motions for reconsideration are not vehicles
for either reasserting arguments previously raised and rejected by the Court or presenting
arguments that should have been raised previously with the Court. See Estate of Gaither ex rel.
Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 & n.4 (D.D.C. 2011).
B. Rule 59(e) Motion for Reconsideration
Federal Rule of Civil Procedure 59(e) permits a party to file “[a] motion to alter or amend
a judgment” within “[twenty-eight] days after the entry of the judgment.” Fed. R. Civ. P. 59(e).
However, a Rule 59(e) motion “is not a second opportunity to present [an] argument upon which
the Court has already ruled, nor is it a means to bring before the Court theories or arguments that
could have been advanced earlier[,]” W.C. & A.N. Miller Cos. v. United States, 173 F.R.D. 1, 3
(D.D.C. 1997), and “need not be granted unless the [ ] [C]ourt finds that there is an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear error or
4
prevent manifest injustice[,]” Anyanwutaku v. Moore, 151 F.3d 1053, 1057–58 (D.C. Cir. 1998)
(internal quotation marks omitted). Although motions under Rule 59(e) “lie within the discretion
of the Court[,]” AARP v. U.S. Equal Emp’t Opportunity Comm’n, 292 F. Supp. 3d 238, 241
(D.D.C. 2017) (citing Ciralsky v. Cent. Intel. Agency, 355 F.3d 661, 671 (D.C. Cir. 2004)), such
motions are “disfavored[,]” and the moving party bears the burden of establishing “extraordinary
circumstances” warranting relief from a final judgment, Niedermeier v. Off. of Baucus,
153 F. Supp. 2d 23, 28 (D.D.C. 2001) (citing Anyanwutaku, 151 F.3d at 1057).
III. ANALYSIS
The Department requests that the Court reconsider its June 27, 2022 Memorandum
Opinion “[p]ursuant to Rule 54(b) or, alternatively, Rule 59[(e)] of [the] Federal Rules of Civil
Procedure[.]” Def.’s Mot. at 1. The Court will first address the appropriate standard for
evaluating the Department’s motion, before considering the merits of the Department’s
arguments for reconsideration.
A. The Applicable Standard for Considering the Department’s Motion for
Reconsideration
As an initial matter, the Court must decide whether the Department’s motion for
reconsideration is appropriately considered under Rule 54(b) or Rule 59(e). In its motion, the
Department notes that, “[i]n the Order that accompanied the [June 27, 2022] Memorandum
Opinion, the Court did not specify whether it was a final appealable order[.]” Id. at 3. The
Department states that, “if the Order was an interlocutory one, [the Department] seeks
reconsideration under Rule 54(b). Alternatively, if the Court intended the Order to be a final
one, [the Department] seeks reconsideration under Rule 59(e).” Id. Although the parties agree
that the Court should apply the Rule 54(b) standard, see Pl.’s Opp’n at 2 (“[T]o avoid confusion
and unnecessary litigation, [the p]laintiff respectfully suggests that the Court apply the ‘more
5
flexible’ Rule 54(b) standard.” (quoting Cobell v. Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015)));
Def.’s Reply at 2 (“[The Department] joins in [the p]laintiff’s suggestion that the [m]otion for
[r]econsideration should be analyzed under Rule 54(b), which provides for a more flexible
standard.”), the Court concludes for the following reasons that Rule 59(e) provides the
appropriate standard in light of the current status of the proceedings in this case.
Under Rule 54(b), any order or decision that does not constitute a final judgment “may 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). The Court’s June 27, 2022 Order, which the Court
issued contemporaneously with its June 27, 2022 Memorandum Opinion, denied the
Department’s motion for summary judgment and granted the plaintiff’s cross-motion, “insofar as
it s[ought] summary judgment on the issue of his entitlement to a FOIA fee waiver as a
non-commercial educational [institution] requester as to the [five] FOIA requests at issue[,]” in
this case, Order at 1 (June 27, 2022), ECF No. 18, thus resolving the merits of the plaintiff’s
claim that the Department violated the FOIA “by assessing search and review fees against
him[,]” Compl. ¶ 34. Due to an inadvertent oversight, the Court’s June 27, 2022 Order did not
enter judgment for the plaintiff as to this claim. See generally Order (June 27, 2022), ECF
No. 18. However, on June 1, 2023, the Court modified its June 27, 2022 Order by entering
judgment for the plaintiff on his claim that he is entitled to a FOIA fee waiver as a
non-commercial educational institution requester with respect to the five FOIA requests at issue
in this case. See Order at 1 (June 1, 2023), ECF No. 31. Thus, the Court construes the plaintiff’s
motion for reconsideration under Rule 59(e). See Fed. R. Civ. P. 59(e).
6
B. Whether Reconsideration is Warranted Under Rule 59(e)
Having concluded that the Department’s motion is properly evaluated under the
Rule 59(e) standard, the Court will now consider whether reconsideration is warranted. The
Department urges the Court to reconsider its June 27, 2022 Memorandum Opinion and Order “to
avoid manifest injustice[,]” Def.’s Mot. at 1, and because it claims “the Court committed a clear
error[,]” Def.’s Reply at 7. Specifically, the Department contends that reconsideration is
required because the Memorandum Opinion (1) “neglected to analyze each of [the p]laintiff’s
five FOIA requests separately to ascertain whether each request has a nexus to [the p]laintiff’s
scholarly research[,]” Def.’s Mot. at 5; and (2) failed to explain how the “[p]laintiff’s income of
approximately $1,800 per month, totaling $21,600 per annum, that he generates from his Patreon
website was ‘marginal profit,’ not sufficient to categorize him as a commercial requester[,]” id.
at 1. The Department “requests that the Court revise its Memorandum Opinion to find that [the
p]laintiff does not qualify for a fee waiver for his second, third[,] and fourth FOIA requests in
this case because they do not relate to his claimed scholarly work[;]” to “clarify how (if at all)
[the p]laintiff’s first and fifth FOIA requests pertain to his areas of research[;]” and “to find that
[the p]laintiff is a commercial requester because his revenues of approximately $21,600 per
annum generated from the requested records from his five FOIA requests are not ‘marginal
profit’ by any objective standard.” Id. at 11.
In opposition, the plaintiff argues that “[t]he Court’s June 27, 2022 Memorandum
Opinion . . . more than adequately explains the basis for holding that [the p]laintiff qualifies as a
non-commercial educational [institution] requester under the [FOIA.]” Pl.’s Opp’n at 1. The
plaintiff further asserts that the Department “fails to state a basis for revising the June 27, 2022
Memorandum Opinion” because the Department “does not cite new or previously unconsidered
7
law or point to any new information that was not before the Court on the cross-motions for
summary judgment.” Id. at 3. The plaintiff contends that the Department instead “asks the
[C]ourt to reapply the same law to the same facts and reach a different conclusion.” Id.
Because the Department does not rely on an “intervening change of controlling law” or
“the availability of new evidence,” Anyanwutaku, 151 F.3d at 1057 (internal quotation marks
omitted), as grounds for reconsideration, see generally Def.’s Mot.; Def.’s Reply, the Court will
confine its Rule 59(e) analysis to the question of whether it needs to “correct a clear error or
prevent manifest injustice[,]” Anyanwutaku, 151 F.3d at 1058 (internal quotation marks
omitted). See id. at 1057–58 (stating that Rule 59(e) motions “need not be granted unless the [ ]
[C]ourt finds that there is an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice”).
With respect to what amounts to “clear error” under Rule 59(e), courts have imposed a
“very exacting standard.” Bond v. U.S. Dep’t of Justice, 286 F.R.D. 16, 22 (D.D.C. 2012)
(quoting Lightfoot v. District of Columbia, 355 F. Supp. 2d 414, 422 (D.D.C. 2005)). To qualify
as clear error, the “final judgment must be ‘dead wrong[.]’” Lardner v. Fed. Bureau of
Investigation, 875 F. Supp. 2d 49, 53 (D.D.C. 2012) (quoting Parts & Elec. Motors, Inc. v.
Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)); see also Smith v. Lynch, 115 F.
Supp. 3d 5, 12 (D.D.C. 2015) (“[T]o be clearly erroneous, a decision must strike [a court] as
more than just maybe or probably wrong; it must . . . strike [the court] as wrong with the force of
a five-week-old, unrefrigerated dead fish.’” (quoting Parts & Elec. Motors, 866 F.2d at 233)
(second and third alterations in original)). Thus, “[m]ere disagreement does not support a
Rule 59(e) motion.” Smith, 115 F. Supp. 3d at 12 (internal quotation marks omitted) (alteration
in original). Similarly, “it is clear that ‘manifest injustice’ is an exceptionally narrow concept in
8
the context of a Rule 59(e) motion[,]” Slate v. Am. Broad. Cos., 12 F. Supp. 3d 30, 35 (D.D.C.
2013), and “must entail more than just a clear and certain prejudice to the moving party, but also
a result that is fundamentally unfair in light of governing law[,]” id. at 35–36.
The Court will first address the Department’s argument that the Court neglected to
analyze each of the plaintiff’s five FOIA requests separately, before addressing the Department’s
argument that the Court failed to explain how the plaintiff’s income from his Patreon website is
insufficient to categorize him as a commercial requester.
1. The Department’s Argument That the Court Did Not Explain How Each of the
Plaintiff’s FOIA Requests Relate to His Scholarly Research
The Court begins with the Department’s argument that “the Court committed a clear error
when it failed to explain how each of the five FOIA requests pertains to [the p]laintiff’s scholarly
research.” Def.’s Reply at 7. The Department argues that the Court’s June 27, 2022
Memorandum Opinion is “legally contradictory[,]” Def.’s Mot. at 6, because, in the opinion, the
Court concluded that “‘the plaintiff did sufficiently show a nexus between the requested records
and his scholarly intent for seeking the records[,]’” id. (quoting Pfeiffer, 2022 WL 2304069,
at *7 (emphasis in original)), without “evaluat[ing] each of [the p]laintiff’s five [FOIA] requests
individually when determining [the p]laintiff’s fee category[,]” id. The Department alleges that,
“had the Memorandum Opinion faithfully observed the legal principles articulated on this issue,
the Court would have found that at least three of [the p]laintiff’s five FOIA requests do not
appear to be related to [the p]laintiff’s scholarly research on anthropology and history of nuclear
power.” Id.As the plaintiff correctly notes, the Department’s argument that “[the] FOIA requests at
issue are unrelated to [the p]laintiff’s research was squarely before the Court on summary
judgment[,]” Pl.’s Opp’n at 4; see Pfeiffer, 2022 WL 2304069, at *4–5 (evaluating the
9
Department’s argument that the plaintiff failed to articulate any specific connection between his
scholarly research and the requested FOIA records), and “[t]o the extent [the Department]
rehashes this argument, the Court need not entertain [the Department’s] motion[,]” Pl.’s Opp’n
at 4; see Bigwood v. Def. Intel. Agency, 770 F. Supp. 2d 315, 317 (D.D.C. 2011) (“[A]
Rule 59(e) motion to reconsider is not simply an opportunity to reargue facts and theories upon
which a court has already ruled[.]” (quoting New York v. United States, 880 F. Supp. 37, 38
(D.D.C. 1995))).
The Department’s only new contention is that the Court erred by failing to analyze each
FOIA request individually. See Def.’s Mot. at 6. In support of this argument, the Department
points to the Court’s observation in the June 27, 2022 Memorandum Opinion that, “when
reviewing FOIA fee waiver requests, ‘[a]gencies must make an independent fee status
determination for each request.’” Pfeiffer, 2022 WL 2304069, at *6 (quoting Long v. U.S. Dep’t
of Homeland Sec., 113 F. Supp. 3d 100, 108 (D.D.C. 2015)). See Def.’s Mot. at 5. The
Department concedes that “the Memorandum Opinion cited the correct cases that discussed
educational institution requestors,” Def.’s Reply at 3, including the decision of another member
of this Court in Long and the District of Columbia Circuit’s decision in Sack v. United States
Department of Defense, 823 F.3d 687 (D.C. Cir. 2016), but the Department argues that the Court
“improperly applied th[e] standards” set forth in those cases, Def.’s Reply at 3. While it is true
that “[a]gencies must make an independent fee status determination for each request[,]”
Long, 113 F. Supp. 3d at 108, the Court need not individually analyze each of the FOIA requests
that comprise a batch of requests for different records and documents as the Department argues,
see Def.’s Mot. at 5 (“Even with the[] legal precepts [from Long] in mind, the Memorandum
Opinion nevertheless neglected to analyze each of [the p]laintiff’s five FOIA requests
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separately[.]”). See Sack, 823 F.3d at 689 (concluding that an individual who submitted multiple
FOIA requests was entitled to educational institution requester status with respect to a “batch of
[her] requests” without analyzing each request separately).2 Rather, the requirement that
“[a]gencies [ ] make an independent fee status determination for each request[,]” Long, 113 F.
Supp. 3d at 108, precludes the Court from concluding that a FOIA requester is entitled to a
preferred fee status for all future FOIA requests merely because the requester has been granted
preferred fee status for previous requests. See Long, 113 F. Supp. 3d at 108 (declining to issue a
declaratory judgment in favor of frequent FOIA requesters who sought a declaration that they
were entitled to educational and news media status for all future requests).
As the Court explained in its June 27, 2022 Memorandum Opinion, see Pfeiffer, 2022
WL 2304069, at *4, “a government agency may seek some assurance that the student is
submitting the FOIA request to further coursework or other school-sponsored activities[,]”
Sack, 823 F.3d at 693. But, the District of Columbia Circuit has “caution[ed] agencies against
requiring hard-to-obtain verifications that will have the practical effect of deterring or turning
away otherwise valid student FOIA requests.” Id. Here, as this Court has already determined,
“the plaintiff [ ] provided ample evidence of how the current requests relate to his scholarly
research[,]” including “a letter from a professor supporting the plaintiff’s FOIA requests
2
The Department attempts to distinguish what another member of this Court characterized as “batch . . . requests”
in Sack from the plaintiff’s FOIA requests in this case. See Def.’s Reply at 4 (“[T]he ‘batch’ requests in Sack dealt
with one specific topic, reports on polygraph examinations, and the [C]ourt analyzed whether those requested
reports related to [the] plaintiff’s dissertation on bias in polygraph testing[,]” whereas “[h]ere, [the p]laintiff
submitted five different requests on five entirely separate subjects[.]”). In Sack, the educational institution requester
sought “Department[ of Defense] reports about its use of polygraph examinations, as well as related documents
about those examinations[,]” for use in “her dissertation on polygraph bias.” Sack, 823 F.3d at 688. However, the
mere fact that the plaintiff’s dissertation research may be broader in scope than the educational institution
requester’s dissertation research on polygraph testing in Sack, see Compl. ¶ 7 (stating that the plaintiff’s dissertation
research “focuses on, but extends beyond, nuclear semiotics across time and locations, nuclear weapon history, the
social effects of information management, and social processes of meaning[-]making and circulation at official
nuclear weapon heritage sites”), does not amount to the plaintiff’s failure to “seek the information in connection
with his . . . role at the educational institution[,]” Sack, 823 F.3d at 693, i.e., for the purpose of pursuing his
scholarly research on the history and anthropology of nuclear weapons, see Pl.’s Opp’n at 5.
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generally and confirming the areas of the plaintiff’s research[,]” and “a copy of his curriculum
vitae, as well as his dissertation proposal, to further connect his scholarly research to the
requested FOIA records.” Pfeiffer, 2022 WL 2304069, at *5; see Sack, 823 F.3d at 693 (“[A]
FOIA request submitted with a copy of a student ID or other reasonable identification of status as
an enrolled student in the school—together with a copy of a syllabus, a letter from a professor, or
the like—should suffice.”). While the Department may disagree with the Court’s conclusion,
“[m]ere disagreement” is insufficient to support a Rule 59(e) motion. Smith, 115 F. Supp. 3d at
12 (citation and internal quotation marks omitted).
Thus, the Court concludes that the Department has failed to meet its burden to show clear
error or manifest injustice. See Niedermeier, 153 F. Supp. 2d at 28 (stating that “relief from
judgment is granted [under Rule 59(e)] only when the moving party establishes extraordinary
circumstances[,]” such as clear error or manifest injustice). Because the Department has not
demonstrated that the June 27, 2022 Memorandum Opinion is “dead wrong[,]” Lardner, 875 F.
Supp. 2d at 53 (internal quotation marks omitted), or “fundamentally unfair in light of governing
law[,]” Slate, 12 F. Supp. 3d at 36, the Court concludes that reconsideration under Rule 59(e) is
not warranted based on the Department’s argument that the Court neglected to analyze each of
the plaintiff’s FOIA requests separately.
2. The Department’s Argument That the Court Failed to Explain How the Plaintiff’s
Patreon Income Is Insufficient to Categorize Him as a Commercial Requester
The Court now turns to the Department’s argument that “the Court should revise its
[June 27, 2022] Memorandum Opinion to hold that [the p]laintiff’s five FOIA requests were
intended for commercial reasons.” Def.’s Mot. at 10. First, the Department asserts that “the
Memorandum Opinion does not cite a single authority to support the conclusion that [the
p]laintiff’s revenue [from his Patreon webpage] of approximately $1,800 per month (which totals
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about $21,600 per year) is considered ‘marginal profit.’” Id. at 9. Second, the Department
argues that, despite the lack of “an apparent nexus between [ ] three [of the] FOIA requests and
[the p]laintiff’s scholarly research,” id. at 10, “the Memorandum Opinion casts aside [the
Department’s] contentions that [the p]laintiff’s five FOIA requests were intended for commercial
purposes by noting that, so long as the requests are in furtherance of his scholarly research, the
quasi-commercial nature of these requests is irrelevant[,]” id. (internal quotation marks omitted).
The Department suggests that the Memorandum Opinion was clearly erroneous, see id. (stating
that the Department “submits that the authorities cited in the Memorandum Opinion do not
suggest that [the p]laintiff’s $21,600 annual revenues constitute ‘marginal profit’”), and it argues
that the opinion should be reconsidered “to avoid a manifest injustice[,]” Def.’s Reply at 1.
Beginning with the Department’s marginal profit argument, the Court’s June 27, 2022
Memorandum Opinion concluded that “the potential marginal profit the plaintiff would acquire
from his Patreon webpage, should he even choose to publish the FOIA records on his Patreon
webpage, does not trump his scholarly intentions to utilize the records for his studies and his
online dissemination of the records without cost to the public.” Pfeiffer, 2022 WL 2304069,
at *8. As the Court explained,
courts have recognized that profit may be “insufficient to render [a requester’s]
actions ‘primarily . . . commercial’ for purposes of calculating a fee
waiver,” Campbell[ v. U.S. Dep’t of Just.], 164 F.3d [20,] [] 35 [(D.C.
Cir. 1998)], and “so long as the request is made to further [a requester’s] scholarly
mission and not principally to enable [a requester] to sell the raw data to third
parties[,]” Long, 113 F. Supp. 3d at 105, profits also acquired from the requested
record “do[] not disqualify [a requester] from educational [institution] requester
status[,]” id.Pfeiffer, 2022 WL 2304069, at *7 (first, sixth, seventh, eighth, ninth, tenth, and twelfth
alterations in original).
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Here, it is not clear that any amount of the plaintiff’s monthly Patreon profits would be
derived from the FOIA records at issue in this case. See id. (noting that the plaintiff “did not
state an intent to publish any records on his Patreon, and, instead, only claimed that if such
records were available on Patreon, they would also be available on the [Open Science
Framework (“]OSF[”)] Archive” (emphasis in original) (internal citation omitted)); Pl.’s Opp’n
at 7 (stating that the Department “provides no basis for inferring that any amount, let alone a
substantial portion, of [the p]laintiff’s $1,800 per month Patreon income is attributable to posting
records obtained via [the] FOIA, especially when those records are available for free on [the
p]laintiff’s own archive”). Thus, the Department’s claim that “the Court should reassess its
Memorandum Opinion to find that [the p]laintiff is a commercial requester because his revenues
of approximately $21,600 per annum generated from the requested records from his five FOIA
requests are not ‘marginal profit’ by any objective standard[,]” Def.’s Mot. at 11, is not
necessarily accurate because the per annum revenue the plaintiff earns from his Patreon is not
necessarily generated from the acquisition of the requested documents at issue in this case, see
id. at 1 (stating that the plaintiff generates “approximately $1,800 per month . . . from his Patreon
website”); Pfeiffer, 2022 WL 2304069, at *7 (highlighting the fact that the plaintiff “did not state
an intent to publish any records on his Patreon,” but “only claimed that if such records were
available on Patreon, they would also be available [for free] on the OSF Archive” (emphasis in
original) (internal citation omitted)).
Although the Department acknowledges the legal principle cited by the Court in the
June 27, 2022 Memorandum Opinion that “profit alone is insufficient to render a requester’s
action primarily commercial so long as the requested records are in furtherance of the scholar’s
mission[,]” Def.’s Mot. at 9, the Department focuses on the fact that the Court did not provide a
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definition of the term “marginal profit[,]” see id. at 9–10 (“[T]he Memorandum Opinion fails to
define what constitutes ‘marginal profit’ for purposes of determining whether a particular FOIA
request was for primarily commercial functions.”). However, the Court’s use of the term
“marginal profit” in the June 27, 2022 Memorandum Opinion is derived from the legal principle
in Long that “so long as the request is made to further [a requester’s] scholarly mission and not
principally to enable [a requester] to sell the raw data to third parties[,]” profits also acquired
from the requested record “do[] not disqualify [a requester] from educational [institution]
requester status.” Long, 113 F. Supp. 3d at 105. As the Court previously explained, the
plaintiff’s potential earnings from posting the requested FOIA records on his Patreon do not
“constitute a primarily commercial interest that outweighs his scholarly intent[,]” as reflected by
the fact that the plaintiff would “also post those records publicly for free on a different
website[.]” Pfeiffer, 2022 WL 2304069, at *7. The Department has therefore not demonstrated
that the Court’s conclusion is clearly erroneous based on the relevant case law or that a manifest
injustice would result if the opinion is not reconsidered. See Anyanwutaku, 151 F.3d at 1057–58
(“Rule 59(e) motions need not be granted unless the district court finds that there is[, inter alia,]
. . . the need to correct a clear error or prevent manifest injustice.” (internal quotation marks
omitted)).
Turning to the Department’s second argument regarding the plaintiff’s fee status
classification—i.e., that the plaintiff’s scholarly intentions are not “sufficiently linked to his
requests[,]” to categorize him as an educational institution requester, Def.’s Reply at 8; see also
Def.’s Mot. at 10 (“Because there lacks an apparent nexus between [ ] three FOIA requests and
[the p]laintiff’s scholarly research, the logical conclusion is that [the p]laintiff sought the
record[s] for primarily commercial purposes and not in furtherance of any academic
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coursework.”)—the Court concludes that this argument has already been addressed. In the
June 27, 2022 Memorandum Opinion, the Court stated that,
[w]hile the Department argues that it could not determine the plaintiff’s primary
interests because he was unable to show his scholarly interest and future plans for
the requested records, this Court has [ ] determined that the
plaintiff did sufficiently show a nexus between the requested records and his
scholarly intent for seeking the records[.]
Pfeiffer, 2022 WL 2304069, at *7 (internal citations omitted) (emphasis in original). Thus, over
the Department’s objection, the Court concluded that “the plaintiff . . . could not have made it
clearer that his primary intention for use of the records is for scholarly purposes[.]” Id. at *8.
Therefore, the Court need not entertain the Department’s attempt to reargue this issue. See W.C.
& A.N. Miller Cos., 173 F.R.D. at 3 (“A Rule 59(e) motion is not a second opportunity to
present [an] argument upon which the Court has already ruled[.]”); Swedish Am. Hosp. v.
Sebelius, 845 F. Supp. 2d 245, 251 (D.D.C. 2012) (declining to entertain a party’s argument for
reconsideration pursuant to Rule 59(e) “[b]ecause the [party] ha[d] already raised th[e] issue
before th[e] court”).
Accordingly, the Court concludes that the Department has failed to satisfy its burden to
demonstrate clear error or manifest injustice warranting relief from the June 27, 2022
Memorandum Opinion, see Niedermeier, 153 F. Supp. 2d at 28 (stating that “relief from
judgment is granted [under Rule 59(e)] only when the moving party establishes extraordinary
circumstances[,]” such as clear error or manifest injustice), based on its argument that the Court
failed to explain how the income generated from the plaintiff’s Patreon is insufficient to
categorize him as a commercial requester.
Because the Department has not identified any intervening change of controlling law or
new evidence, demonstrated a clear error that needs correction, or shown that the Court’s prior
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ruling amounts to manifest injustice if unchanged, see Anyanwutaku, 151 F.3d at 1057–58, the
Court must therefore deny the Department’s motion for reconsideration.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must deny the Department’s motion
for reconsideration.
SO ORDERED this 7th day of July, 2023.3
REGGIE B. WALTON
United States District Judge
3
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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