140 F.4th 480
D.C. Cir.2025Background
- David Rudometkin was convicted by a military judge (Henry), who was later suspended for inappropriate conduct; Rudometkin sought post-trial relief based on that misconduct but was denied by another judge (Watkins), later appointed Chief Trial Judge.
- Rudometkin filed FOIA requests to obtain Army records about Henry’s investigation/discipline and Defense Department records relating to Watkins’s appointment.
- The Government produced some responsive records regarding Watkins but withheld portions under FOIA Exemption 5 (deliberative process privilege), stating release would harm agency decision-making.
- Rudometkin’s FOIA lawsuit originally sought records about Henry but amended to focus only on records about Watkins; attempts to reintroduce the Henry claim were denied as he began separate litigation on it.
- The District Court granted summary judgment for the Government, finding exemptions were properly applied and motions to amend were denied; Rudometkin appealed.
- On appeal, the D.C. Circuit affirmed in part, but reversed and remanded on the question of whether non-exempt information within exempt records could be segregated and released without foreseeable harm.
Issues
| Issue | Rudometkin's Argument | Government's Argument | Held |
|---|---|---|---|
| Validity of Exemption 5 withholding | Alleged government misconduct negates privilege; insufficient showing of foreseeable harm | Exemption 5 covers deliberative documents; foreseeable harm is manifest in sensitive personnel selections | Government met foreseeable harm standard, but no misconduct exception; privilege applies |
| Adequacy of segregability analysis | Government failed to show all segregable, non-exempt info was released | Segregability analysis was sufficient; all non-exempt parts disclosed | Analysis was insufficient; reversed and remanded on this issue |
| Motion to amend complaint to add Henry-related FOIA claim | District Court erred by denying leave; failed to address original FOIA claim | Claim is now live in another case; allowance would duplicate litigation | Affirmed denial—claim is pending in separate litigation |
| Adequacy of search for records | Not challenged on appeal | Search was reasonable and adequate | Challenge forfeited; Government's search was adequate |
Key Cases Cited
- U.S. Fish & Wildlife Serv. v. Sierra Club, 592 U.S. 261 (scope of FOIA Exemption 5 enumerated)
- Am. Immigr. Laws. Ass’n v. Exec. Off. for Immigr. Rev., 830 F.3d 667 (allowing category-of-document justification in FOIA cases)
- Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350 (explaining requirements for foreseeable harm in FOIA Exemption 5)
- Baird v. Gotbaum, 792 F.3d 166 (plaintiff cannot litigate same subject in multiple actions simultaneously)