David Rudometkin v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 15, 2025 Decided June 10, 2025

No. 23-5180

DAVID J. RUDOMETKIN,

APPELLANT

v.

UNITED STATES OF AMERICA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cv-02687)

Charles E.T. Roberts, appointed by the court, argued the

cause as amicus curiae in support of appellant. With him on

the briefs was Anthony J. Dick, appointed by the court.

David J. Rudometkin, pro se, was on the briefs for

appellant.

Douglas C. Dreier, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Matthew M.

Graves, U.S. Attorney, and Brian P. Hudak and Jane M. Lyons,

Assistant U.S. Attorneys.

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Before: PAN and GARCIA, Circuit Judges, and EDWARDS,

Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: In 2018, a military judge,

Lieutenant Colonel Richard Henry, found Appellant David

Rudometkin guilty of several offenses and sentenced him to

seventeen years of confinement. United States v. Rudometkin

(“Rudometkin I”), 82 M.J. 396, 397 (C.A.A.F. 2022). Another

military judge, Colonel Douglas Watkins, denied

Rudometkin’s post-trial motion for a mistrial, which was based

on the U.S. Army’s subsequent suspension of Henry as a

military judge for inappropriate conduct. Id. at 397-99. Soon

after, the Secretary of Defense (“Secretary”) appointed

Watkins as the Chief Trial Judge of the Military Commissions

Trial Judiciary.

When challenging his conviction, Rudometkin submitted

Freedom of Information Act (“FOIA”) requests to the Army

and the U.S. Department of Defense (“Department”), seeking

the Army’s investigatory and disciplinary records of Henry and

the Department’s records regarding the nomination, selection,

and appointment of Watkins as the Chief Trial Judge. The

Government either did not meaningfully respond to the

requests or rejected them pursuant to exemptions under FOIA.

FOIA mandates the disclosure of documents held by a federal

agency unless the documents fall within one of nine

enumerated exemptions. See 5 U.S.C. § 552(a)-(b). Exemption

5 under FOIA “incorporates the privileges available to

Government agencies in civil litigation. That list includes the

deliberative process privilege, attorney-client privilege, and

attorney work-product privilege.” U.S. Fish & Wildlife Serv. v.

Sierra Club, Inc., 592 U.S. 261, 267 (2021).

3

In 2020, Rudometkin filed a pro se complaint in the

District Court, challenging the Government’s withholding of

records. Notably, Rudometkin’s original FOIA complaint

related to his FOIA request for the Army’s investigatory and

disciplinary records of Henry; however, he subsequently

amended the complaint, and the amended complaint only

referenced his FOIA request for the Department’s records

concerning Watkins’s selection as Chief Trial Judge. During

the next year, the Government produced a set of responsive

records, with some information redacted pursuant to FOIA

exemptions.

After granting in part and denying in part the

Government’s original motion for summary judgment as to the

adequacy of its search for records and claimed withholdings,

the District Court eventually granted the Government’s

renewed motion for summary judgment and denied

Rudometkin’s cross-motion for summary judgment.

Rudometkin v. United States (“Rudometkin II”), No. 20-cv-

2687, 2023 WL 4762574, at *1 (D.D.C. July 26, 2023). The

trial court concluded that the Government had adequately

proven the adequacy of its search for responsive records, that

the Government had appropriately withheld the remaining

records pursuant to Exemption 5’s deliberative-process

privilege, and that the Government had released all reasonably

segregable, non-exempt information. Id. at *1-3. The court

rejected Rudometkin’s claim that a government misconduct

exception existed for withholdings under Exemption 5’s

deliberative-process privilege. See id. at *2.

Throughout the litigation in the District Court,

Rudometkin attempted to amend his complaint to incorporate

the original complaint’s claim regarding the Army’s

investigatory and disciplinary records of Henry. Nonetheless,

the District Court denied Rudometkin’s motions to amend the

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complaint and motion for reconsideration of its denial to

amend.

On appeal, Rudometkin challenges the District Court’s

grant of summary judgment in favor of the Government –

specifically, the District Court’s upholding of the

Government’s withholdings under Exemption 5’s deliberative-

process privilege. Rudometkin also contests the District

Court’s denial of his motions to amend his complaint to

incorporate his original complaint.

For the reasons explained below, we reverse and remand

in part and affirm in part. First, on the record before us, the

Government did not establish that it properly withheld records

under Exemption 5’s deliberative-process privilege. While it is

manifest that the disclosure of records regarding the

discussions and deliberations surrounding Watkins’s selection

as Chief Trial Judge would foreseeably harm an interest

protected by Exemption 5, the Government has not yet shown

that it has released all reasonably segregable information

within exempt records that could be disclosed without causing

foreseeable harm to an interest protected by Exemption 5. See

Leopold v. U.S. Dep’t of Just., 94 F.4th 33, 37 (D.C. Cir. 2024);

5 U.S.C. § 552(a)(8)(A)(ii), (b). Therefore, we reverse and

remand on the segregability issue. Second, Rudometkin’s

FOIA claim regarding his original request for the Army’s

investigatory and disciplinary records of Henry is now live in

a separate action. See Rudometkin v. Wormuth, No. 22-cv-

01968 (D.D.C. Mar. 21, 2025). Accordingly, we affirm the

District Court’s denial of Rudometkin’s October 2022 motion

to amend his complaint to incorporate the original FOIA claim.

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I. BACKGROUND

A. Legal Background

As noted above, FOIA charges federal agencies with

disclosing agency records, upon request, unless one of nine

statutory exemptions applies. See Kowal v. U.S. Dep’t of Just.,

107 F.4th 1018, 1026-27 (D.C. Cir. 2024). As relevant here,

Exemption 5 safeguards ‘‘inter-agency or intra-agency

memorandums or letters that would not be available by law to

a party other than an agency in litigation with the agency.’’ 5

U.S.C. § 552(b)(5). This exemption includes the deliberative-

process privilege, which “shields documents ‘reflecting

advisory opinions, recommendations, and deliberations’ that

agencies use to make decisions.” Emuwa v. U.S. Dep’t of

Homeland Sec., 113 F.4th 1009, 1013 (D.C. Cir. 2024) (citation

omitted). Importantly, the goal of the deliberative-process

privilege is to “ensure[] that ‘debate and candid consideration

of alternatives within an agency’ are not subject to public

inspection.” Id. (citations omitted).

In 2016, Congress enacted the FOIA Improvement Act to

“impose[] additional, crosscutting obligations on each agency

considering withholding information under any FOIA

exemption.” Hum. Rts. Def. Ctr. v. U.S. Park Police, 126 F.4th

708, 713-14 (D.C. Cir. 2025). First, an agency must still

disclose information protected by an exemption unless it

“reasonably foresees that disclosure would harm an interest

protected by an exemption” or if “disclosure is prohibited by

law.” 5 U.S.C. § 552(a)(8)(A)(i). Second, an agency must “take

reasonable steps to release any segregable, non-exempt

information.” Hum. Rts. Def. Ctr., 126 F.4th at 717 (citation

omitted). Specifically, agencies “must ‘consider whether

partial disclosure of information is possible whenever the

agency determines that a full disclosure of a requested record

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is not possible’’’ and ‘‘take reasonable steps necessary to

segregate and release nonexempt information.’’ Leopold, 94

F.4th at 37 (quoting 5 U.S.C. § 552(a)(8)(A)(ii)(I)-(II)).

B. Factual and Procedural Background

In 2018, Military Judge Lieutenant Colonel Richard Henry,

who was presiding over a general court-martial proceeding,

found David Rudometkin guilty of rape, aggravated sexual

assault, assault consummated by a battery, and conduct

unbecoming of an officer (for committing adultery), and

sentenced him to seventeen years of confinement and

dismissal. Rudometkin I, 82 M.J. at 397. Following the court

martial, the U.S. Army suspended Henry from his role as a

military judge due to his inappropriate relationship with the

wife of another officer who was a trial defense counsel at Fort

Benning, Georgia. See id. The officer whose wife had a

relationship with Henry did not represent Rudometkin in his

court martial proceedings. See id. Nonetheless, Rudometkin

moved for a mistrial, claiming that Henry was not impartial

because Henry’s “misconduct was similar to the adulterous

misconduct for which [Henry] found [Rudometkin] guilty.” Id.

Military Judge Colonel Douglas Watkins presided over the

post-trial proceedings and ultimately denied Rudometkin’s

motion, determining that Henry’s failure to recuse himself did

not create a risk of injustice or undermine the public’s

confidence in the judicial process. See id. at 397-99.

While the U.S. Army Court of Criminal Appeals initially

reversed that decision and set aside Rudometkin’s convictions,

the U.S. Court of Appeals for the Armed Forces later reversed

that ruling and remanded the case for further review because it

concluded that Watkins did not clearly abuse his discretion in

denying the mistrial motion. See id. at 399, 402.

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Beginning in late 2018, Rudometkin submitted FOIA

requests to the Army, seeking records regarding the Army’s

investigation of Henry, including disciplinary records. In the

meantime, the Secretary of Defense had designated Watkins as

the Chief Trial Judge. This designation occurred after the

Department’s Office of General Counsel (“OGC”) had

solicited views from the Judge Advocates General (“JAGs”),

obtained recommendations, and submitted a consensus

nomination to the Secretary. In 2019, Rudometkin submitted a

FOIA request to the Department, seeking records concerning

the nomination, selection, and appointment of Watkins as the

Chief Trial Judge of the Military Commissions Trial Judiciary.

Following the Government’s rejection of some requests

and failure to substantively respond to other requests,

Rudometkin brought the present FOIA action in the District

Court in 2020. His original complaint sought disclosure of the

Army’s records related to the investigation and discipline of

Henry. Rudometkin subsequently filed an amended complaint,

which sought disclosure of the Department’s records

concerning the nomination, selection, and appointment of

Watkins as the Chief Trial Judge. The amended complaint

omitted any reference to Henry’s records.

In 2021, the Government provided Rudometkin with 83

pages of responsive records for his FOIA request regarding

Watkins, with some portions redacted pursuant to FOIA

Exemptions 5 and 6. The Government later moved for

summary judgment regarding its search for responsive records

and withholdings. In support, the Government provided a

Vaughn index, see Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.

Cir. 1973), and declaration in which Mark Herrington, an

associate deputy general counsel in the OGC, explained the

Government’s claimed exemptions.

8

Herrington’s declaration divided the documents into two

categories: (1) “the substance of the actual nominations and

accompanying advice and recommendations,” and drafts of

those documents; and (2) “emails and internal [Department of

Defense] memorandum provided by the General Counsel and

other OGC attorneys advising the Secretary regarding the

designation of COL Watkins …, and drafts of those

documents.” First Herrington Decl. ¶¶ 8-9. For the first

category, Herrington averred that disclosure of the

“information would cause harm to the Secretary’s decision-

making process, as it would hamper the unfettered and candid

advice of those making recommendations to the Secretary if

that advice is no longer kept confidential.” Id. ¶ 8. Similarly,

for the second category, Herrington claimed that “[p]ublic

disclosure of the attorney-client communications would

seriously disrupt open communication between the Secretary

and his attorneys, as well as deprive government decision-

makers of the full and candid advice of their counsel,” and

would “hamper the day-to-day workings of the Department, as

senior attorneys would no longer feel free to convey their

recommendations in formal written correspondence.” Id. ¶ 9.

Throughout 2022, Rudometkin attempted to amend his

complaint. Specifically, in April 2022, Rudometkin moved to

amend because he neglected to incorporate by reference his

original FOIA complaint regarding the Army’s investigatory

and disciplinary records of Henry into the first amended

complaint. In June 2022, he again moved to amend the

complaint to incorporate the original complaint and add a

request for records for Henry’s Army Grade Determination

Board. Likewise, Rudometkin moved to amend his complaint

in August 2022.

In September 2022, the District Court granted in part and

denied in part, without prejudice, the Government’s motion for

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summary judgment, and denied Rudometkin’s June 2022

motion to amend the complaint. As to the summary judgment

motion, the court denied it with respect to the adequacy of the

search because the Government failed to proffer any supporting

evidence on its search for responsive records. In addition, the

court denied the motion as to particular Exemption 5

deliberative-process privilege withholdings – specifically,

documents concerning internal recommendations to the Office

of Military Commissions regarding numbers and selection

criteria, and Watkins’s personal information (Documents 2 and

9 on the Vaughn index). It also denied the motion as to all

claimed withholdings under Exemption 5’s attorney-client

privilege.

On the other hand, the District Court granted the motion as

to other Exemption 5 deliberative-process privilege

withholdings – namely, recommendations for Chief Trial

Judge from the departing Chief Trial Judge and Navy and Air

Force JAGs (Documents 4, 10, 20, 22, and 29 on the Vaughn

index). In the court’s view, the Government adequately

justified those withholdings. With respect to Rudometkin’s

June 2022 motion to amend the complaint, the court held that

he failed to exhaust administrative remedies for his request for

Henry’s records from the Army Review Boards Agency. In a

separate order issued the same day, the District Court denied

Rudometkin’s August 2022 motion to amend as baseless.

A month later, Rudometkin moved for reconsideration of

the District Court’s denial of his motion to amend, arguing that

the court failed to address his April 2022 motion. With the

motion for reconsideration, Rudometkin enclosed the April

2022 motion to amend, which the court then mistakenly

docketed as a new October 2022 motion. Nonetheless, the

District Court subsequently denied the motion for

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reconsideration and the alleged new motion to amend,

explaining that it stood by its prior findings.

Around the same time, the Government renewed its motion

for summary judgment. By this time, it had released a group of

documents to Rudometkin (Documents 2, 9, and 30 on the

Vaughn index). With the motion, the Government submitted a

supplemental declaration from Herrington, which summarized

its search for records, explained its reasoning for Exemption

5’s deliberative-process privilege withholdings, and withdrew

its assertions of attorney-client privilege withholdings.

Specifically, Herrington described the remaining documents as

the record of recommendations from the JAG of each military

branch. He averred that “i[f] their recommendations were made

public and conflicted with the ultimate decision, those officers

could suffer negative impacts on their ability to lead and their

careers.” Second Herrington Decl. ¶ 11. Herrington also

attested that he “reviewed the documents line by line and

confirm[ed] that the non-exempt portions were segregated

from the exempt portions and the non-exempt portions were

produced.” Id. ¶ 12.

Shortly thereafter, Rudometkin cross-moved for summary

judgment to challenge the propriety of the Government’s

claimed withholdings. His primary claim was that the alleged

evidence of government misconduct in Watkins’s selection and

nomination pierced any claimed privilege.

Ultimately, the District Court granted the Government’s

motion for summary judgment and denied Rudometkin’s cross-

motion for summary judgment. Rudometkin II, 2023 WL

4762574, at *1. The court first held that the Government had

sufficiently demonstrated the adequacy of the search. Id.

Second, the court found that the Government properly withheld

the remaining records under Exemption 5’s deliberative-

11

process privilege. Id. at *1-2. Specifically, the court observed

that the remaining records consisted of direct recommendations

from subordinates to OGC or the Secretary, predecisional draft

copies of those documents, and duplicate pages. Id. at *1. It

further reasoned that the Government had adequately explained

how disclosure of such information would foreseeably cause

harm; principally, disclosure of the solicited recommendations

regarding the Chief Trial Judge would chill candid discussions

about future candidates. Id. at *2. In addition, the court rejected

Rudometkin’s claim that his allegation of government

misconduct was relevant for purposes of the Exemption 5

analysis. Id. Third, the court concluded that the Government

had shown that all reasonably segregable, non-exempt

information had been disclosed to Rudometkin. Id. at *3.

In 2024, we denied Rudometkin’s motion for summary

reversal and granted in part and denied in part the

Government’s motion for summary affirmance. In pertinent

part, due to forfeiture, we granted summary affirmance as to

the District Court’s September 2022 order denying

Rudometkin’s June 2022 motion to amend his complaint and

September 2022 minute order denying Rudometkin’s August

2022 motion to amend his complaint. However, we denied

summary affirmance as to the District Court’s order granting

the Government’s renewed motion for summary judgment, and

December 2022 minute order denying Rudometkin’s October

2022 motion to amend his complaint.

Rudometkin now appeals the District Court’s grant of the

Government’s renewed motion for summary judgment and the

District Court’s denial of his motion to amend the complaint to

incorporate his original complaint. This court appointed an

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amicus curiae (“Amicus”) to present arguments on

Rudometkin’s behalf. 1

II. ANALYSIS

A. Standard of Review

“We review de novo a district court’s grant of summary

judgment in favor of an agency which claims to have complied

with FOIA.” Hum. Rts. Def. Ctr., 126 F.4th at 715 (internal

quotation marks and citation omitted). In addition, we review

for abuse of discretion the District Court’s denial of a motion

for leave to amend a complaint, “except for denials based on

futility, which we review de novo.” Ramos v. Garland, 77 F.4th

932, 940 (D.C. Cir. 2023).

B. The Government’s Motion for Summary Judgment

We first address the District Court’s grant of summary

judgment in favor of the Government. Rudometkin argues that

the District Court improperly upheld the Government’s

withholdings under Exemption 5’s deliberative-process

privilege. We agree in part.

To warrant summary judgment, the Government must first

demonstrate that the agency adequately searched for

responsive records and “that the withheld documents are

protected by Exemption 5[’s deliberative-process privilege]

because they are predecisional and deliberative.” Waterman v.

Internal Revenue Serv., 61 F.4th 152, 158 (D.C. Cir. 2023). In

1

The court expresses its gratitude to Charles E.T. Roberts, who

presented oral argument on behalf of Appellant, and to his colleague

Anthony J. Dick, who appeared with him on the briefs, for their fine

service to the court.

13

other words, to fall within the deliberative-process privilege, a

record must be ‘‘generated before the agency’s final decision

on the matter,’’ and ‘‘prepared to help the agency formulate its

position.’’ Cabezas v. FBI, 109 F.4th 596, 604 (D.C. Cir. 2024)

(citation omitted). Then, to withhold records covered by

Exemption 5, the Government must further show that (1) it

“reasonably foresees that disclosure would harm an interest

protected by [that] exemption”; and (2) that it has “release[ed]

any reasonably segregable information within the [exempt]

record[s] that could be disclosed without causing reasonably

foreseeable harm to an interest” protected by that exemption.

Leopold, 94 F.4th at 37 (internal quotation marks and citations

omitted); see also 5 U.S.C. § 552(a)(8)(A). Importantly, the

Government may “justify withholding or redacting records

category-of-document by category-of-document rather than

document-by-document.” Am. Immigr. Laws. Ass’n v. Exec.

Off. for Immigr. Rev., 830 F.3d 667, 675 (D.C. Cir. 2016)

(cleaned up) (citations omitted). And we “may rely on non-

conclusory agency affidavits demonstrating the basis for

withholding if they are not contradicted by contrary evidence

in the record or by evidence of the agency’s bad faith.” Reps.

Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 361 (D.C.

Cir. 2021).

At the outset, we note that, in their briefs to this court,

Rudometkin and Amicus have not challenged the adequacy of

the Government’s search for responsive records. As such,

Rudometkin has forfeited that challenge. See Cabezas, 109

F.4th at 602, 606 (stating that a party forfeits an argument by

failing to raise it in its opening brief). Second, Rudometkin has

not meaningfully challenged the Government’s claim that the

records at issue are covered by Exemption 5’s deliberative-

process privilege (i.e., that the documents are predecisional and

deliberative). He has thus forfeited such a challenge due to his

failure to offer any non-cursory argument on the issue in his

14

briefs before this court. See Khine v. U.S. Dep’t of Homeland

Sec., 943 F.3d 959, 967 (D.C. Cir. 2019) (“[I]t is not enough

merely to mention a possible argument in the most skeletal

way.” (cleaned up) (citation omitted)).

On the basis of the record before us, we find that the

Government has met the foreseeable harm standard, but it has

not yet satisfied FOIA’s segregability requirement. We

therefore reverse and remand on the segregability issue.

1. No Government Misconduct Exception Exists for

FOIA Exemption 5.

Rudometkin contends that a “government misconduct”

exception exists for claims of privilege under Exemption 5. In

his view, well-substantiated allegations of government

misconduct render Exemption 5’s deliberative-process

privilege void. Our precedent, however, does not support

Rudometkin’s argument.

First, we have made clear that there is no controlling

precedent recognizing a government misconduct exception to

Exemption 5. See Protect Democracy Project, Inc. v. Nat’l Sec.

Agency, 10 F.4th 879, 888-89 (D.C. Cir. 2021). Second, we

have explained that contrary to Exemption 7 – which excludes

disclosure of information that would constitute an unwarranted

invasion of privacy and involves balancing various interests

such as the interest in exposing government misconduct – “[n]o

such balancing or consideration of public interest is called for

under Exemption 5.” Id. at 889. “The deliberative process

privilege is a qualified privilege and can be overcome by a

sufficient showing of need.” In re Sealed Case, 121 F.3d 729,

737 (D.C. Cir. 1997). However, “[t]his characteristic of the

deliberative process privilege is not an issue in FOIA cases

because the courts have held that the particular purpose for

15

which a FOIA plaintiff seeks information is not relevant in

determining whether FOIA requires disclosure.” Id. at 737 n.5.

Accordingly, we reject Rudometkin’s claim that

allegations of government misconduct can overcome

Exemption 5’s deliberative-process privilege.

2. Foreseeable Harm Is “Manifest” from the Nature of

the Documents.

Rudometkin also asserts that the Government’s

declarations failed to establish foreseeable harm from the

disclosure of its records. Specifically, he argues, inter alia, that

the Government’s claims of foreseeable harm are generic,

conclusory, and speculative. We disagree because we conclude

that foreseeable harm is manifest in the documents at issue.

“[T]o withhold records covered by Exemption 5 through

the deliberative-process privilege, an agency must show that

releasing the specific records sought would chill future internal

discussions.” Emuwa, 113 F.4th at 1013 (internal quotation

marks and citation omitted). However, ‘‘perfunctory

statement[s] that disclosure of all the withheld information—

regardless of category or substance—would jeopardize the free

exchange of information between senior leaders within and

outside of the agency will not suffice.” Reps. Comm., 3 F.4th

at 370 (cleaned up) (citations omitted). Rather, an agency must

concretely demonstrate “why disclosure of the particular type

of material at issue will, in the specific context of the agency

action at issue, actually impede those same agency

deliberations going forward.” Id. At bottom, the agency must

articulate the “link between the specified harm and specific

information contained in the material withheld.” Id. at 371

(citation omitted). However, even when an agency’s

declaration falls short of this standard, we will uphold the

16

agency’s withholding of documents in rare situations when

“the record establishes the unique sensitivity” of those

documents, such that “the foreseeability of harm [is] manifest”

from the “very context and purpose” of the documents. Reps.

Comm., 3 F.4th at 372; see also Emuwa, 113 F.4th at 1015.

In this case, the records relate to discussions and

deliberations concerning a particularly sensitive personnel

decision – the selection of a Chief Trial Judge by the Secretary

of Defense with input from subordinates – which “make[s] the

foreseeability of harm [from disclosure] manifest.” Reps.

Comm., 3 F.4th at 372. Specifically, the release of

recommendations, drafts, and other documents that would

reveal internal discussions about the candidates, why the

candidates were or were not selected, and the criteria for their

selection, plainly would impair candid discussions of

candidates and the selection process going forward, given that

the successful candidate will have power and authority to affect

the interests of the people involved in the selection process.

“[T]he sensitivity of the context in which these

[communications] arose as well as their subject matter, and the

need for confidentiality in discussions of” the selection of a

high-ranking position in the military “provide the

particularized context for a finding of foreseeable harm.” Id.

Although the Government’s declarations may take on the

flavor of the boilerplate and generic assertions of foreseeable

harm that we have rejected (i.e., bare assertions of chill to

future internal discussions), see id. at 370-72, the manifest

nature of the harm in this case from the disclosure of the

contested documents confirms that the Government’s claims

are not exaggerated.

Furthermore, the Government adequately justified its

withholdings on a category-by-category basis rather than

document-by-document. As explained above, the first

17

Herrington declaration separated the universe of records into

two categories: (1) “the substance of the actual nominations

and accompanying advice and recommendations,” and drafts

of those documents; and (2) “emails and internal [Department

of Defense] memorandum provided by the General Counsel

and other OGC attorneys advising the Secretary regarding the

designation of COL Watkins …, and drafts of those

documents.” First Herrington Decl. ¶¶ 8-9. In addition, the

second Herrington declaration grouped the remaining records

into a single category: records of recommendations from the

JAG of each military service. In both declarations, Herrington

outlined the rationale for each category of Exemption 5

withholdings. Overall, these categories sufficiently indicate

“the substance of the information contained” and “allow the

court to assess the [Government’s] representations of how

release of the documents would result in” harm. Bevis v. U.S.

Dep’t of State, 801 F.2d 1386, 1390 (D.C. Cir. 1986).

Moreover, “the documents within each category are

sufficiently similar … and the categories are sufficiently well-

defined and distinct” so as to permit this court to determine

whether the Government properly invoked Exemption 5. Am.

Immigr. Laws., 830 F.3d at 675.

Although the Government’s Vaughn index’s descriptions

of certain documents were too vague (i.e., Documents 5, 6, 21,

and 23), the detailed document descriptions in the second

Herrington declaration demonstrate that the documents contain

the sort of information that is exempt and fall within the

categories identified by the Government.

We therefore conclude that the Government has

sufficiently justified its Exemption 5 withholdings and has

satisfied FOIA’s foreseeable harm requirement.

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3. The Government’s and the District Court’s

Segregability Analyses Are Incomplete.

Finally, Rudometkin claims that the Government failed to

show that it cannot release any reasonably segregable

information from within exempt portions of the records without

causing foreseeable harm. We agree. The Government’s and

the District Court’s segregability analyses are insufficient

under our precedent.

After the Government shows that a record includes exempt

information, “it is ‘entitled to a presumption that it complied

with the obligation to disclose reasonably segregable

material.’’’ Flyers Rts. Educ. Fund, Inc. v. Fed. Aviation

Admin., 71 F.4th 1051, 1057-58 (D.C. Cir. 2023) (cleaned up)

(citation omitted). To rebut this presumption, the FOIA

requester must introduce “evidence that would warrant a belief

by a reasonable person that the agency failed to comply with

its obligation.” Id. at 1058 (internal quotation marks and

citation omitted). However, despite this presumption, a district

court must nonetheless “mak[e] an express finding on

segregability.” Machado Amadis v. U.S. Dep’t of State, 971

F.3d 364, 371 (D.C. Cir. 2020) (citation omitted). In addition,

“[e]ven if an exemption covers an entire agency record, the

agency still must release any reasonably segregable

information within the record that could be disclosed without

causing reasonably foreseeable harm to an interest that the

exemption protects.” Leopold, 94 F.4th at 37.

The court’s decision in Leopold controls the results here.

There, we vacated a district court’s grant of summary judgment

in favor of an agency, where the agency failed to consider

whether exempt portions of a record could be disclosed without

causing foreseeable harm to the interests protected by FOIA

Exemption 8. Id. at 37-39. The same judgment applies here.

19

In this case, Herrington attested in his declarations that he

had conducted a line-by-line review of the documents, and

determined that there was no further reasonably segregable

information and that the non-exempt portions of the record

were segregated from the exempt portions. Absent from

Herrington’s declarations, however, is a statement that the

Government reviewed the exempt portions of the documents to

assess “whether any information could be segregated and

released without causing a foreseeable harm to the agency.”

Emuwa, 113 F.4th at 1017 (citation omitted) (applying

Leopold). Instead, the Government considered segregability as

to only “non-exempt portions” and “exempt portions of the

records,” without addressing foreseeable harm. Second

Herrington Decl. ¶ 12; see also First Herrington Decl. ¶ 13. But

Leopold requires independent consideration of whether any

portion of a document, although exempt, could be segregated

and released without causing foreseeable harm.

Moreover, the District Court’s findings on segregability

suffer from a similar flaw. Specifically, the court concluded

that the Government disclosed “all reasonably segregable non-

exempt information.” Rudometkin II, 2023 WL 4762574, at *3.

Yet, by not addressing whether the Government demonstrated

that exempt information could not be segregated and disclosed

without causing foreseeable harm, the District Court’s decision

fails the test prescribed by Leopold.

The Government claims that Rudometkin forfeited any

segregability argument by failing to contest segregability

before the District Court. The Government is mistaken. We

have made it clear that the District Court “has the obligation to

consider the segregability issue sua sponte, regardless of

whether it has been raised by the parties” and have “many times

remanded in cases where the district court had failed to rule on

segregability.” Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d

20

771, 776 (D.C. Cir. 2002). “The segregability requirement . . .

extends to both steps of FOIA’s sequential inquiry: Even if an

exemption covers an entire agency record, the agency still must

release any reasonably segregable information within the

record that could be disclosed without causing reasonably

foreseeable harm to an interest that the exemption protects.”

Leopold, 94 F.4th at 37. Therefore, if the record from the

District Court does not confirm that exempt information could

not be segregated and disclosed without causing foreseeable

harm, then the record is not adequate to support the

Government’s claim of compliance with FOIA’s segregability

requirement.

Accordingly, we reverse the District Court’s grant of

summary judgment to the Government and remand the case for

further proceedings on the segregability question.

C. Rudometkin’s Motion for Leave to Amend the Complaint

Finally, we turn to the District Court’s denial of

Rudometkin’s October 2022 motion to amend his complaint.

Rudometkin argues that the District Court abused its discretion

by refusing to grant his April 2022 and October 2022 motions

to amend his complaint and by failing to provide a rationale for

denying him leave to reincorporate his original complaint. In

his view, the District Court – when denying his motion for

reconsideration of his motion to amend – confused his original

FOIA claim for the Army’s investigatory and disciplinary

records of Henry with his subsequent request for Henry’s grade

determination board records; therefore, the District Court’s

ruling did not address the original FOIA claim.

However, after oral argument, Amicus and the Government

advised this court that Rudometkin is now litigating his FOIA

claim related to the Army’s investigatory and disciplinary

21

records of Henry in Rudometkin v. Wormuth, and that the

district court in that action has denied the Government’s

motion to dismiss that claim. No. 22-cv-01968 (D.D.C. Mar.

21, 2025). Consequently, they request that this court affirm the

District Court’s denial of the leave to amend on the alternative

ground that the claim Rudometkin sought to reincorporate is

now live in a separate action in the U.S. District Court for the

District of Columbia.

We agree. Indeed, we have made clear that “a plaintiff has

no right to maintain two separate actions involving the same

subject matter at the same time in the same court and against

the same defendant.” Baird v. Gotbaum, 792 F.3d 166, 171

(D.C. Cir. 2015) (citation omitted). Reversing the District

Court’s judgment and remanding the case to permit

Rudometkin to reincorporate his original FOIA complaint in

this action would create such an issue. As such, we affirm the

District Court’s judgment on this ground. See id. (“[A]s an

appellate court, we can ‘affirm the District Court on any valid

ground, and need not follow the same mode of analysis.’”

(citation omitted)).

III. CONCLUSION

For the reasons set forth above, we reverse the District

Court’s grant of the Government’s renewed motion for

summary judgment and remand for further proceedings as to

the segregability issue. And we affirm the District Court’s

judgment as to Rudometkin’s October 2022 motion for leave

to amend the complaint.

So ordered.